Appendant, appurtenant or in gross. What kinds within c. 71. What not. dig for, and take away clay (i). All of these, however, may not be within this statute (k). These profits à prendre are either appendant or appurtenant to corporeal inheritances (1), and claimed by the owners of such inheritances (m), or by those claiming a less estate under but in the name of such owners (n), and, when claimed by prescription, claimed in a que estate, that is, by the claimant and all those whose estate he hath (o); or in gross, that is, belonging to a person only (p), irrespective of any inheritance, and, when claimed by prescription, are claimed either by a natural person as belonging to him and his ancestors whose heir he is (q), or by a corporation as belonging to them and their predecessors (r). The profits à prendre within the chapter 71 are those only of the same nature as expressed in the section 1, that is, as a right of common (s), and are to be taken (t) and enjoyed from or upon land (u), and by their nature land only (x), and from or upon land of another person (y); and, for this purpose, the land of a copyholder, as respect his acts thereon, is not the land of the lord of the manor (z). But a right to take minerals; a right to a free fishery in gross (a); a right to hunt and to hawk (b), which does not include the right to shoot (b); a right to shoot, (i) Clayton v. Corby, 2 Ad. & E., N. S. 813. (k) See Shuttleworth v. Le (1) Co. Litt. 121 b, 122 a. (n) Gateward's case, 6 Co. 59 a; (0) Litt. ss. 181, 183; Co. Litt. (q) Litt. ss. 182, 183; Co. Litt. (r) Co. Litt. 113 b. (8) See Welcome v. Upton, 5 M. which is, in general, incident to and arises out of the possession (c), on the ownership of the soil, but may become a distinct incorporeal hereditament, unconnected with such ownership, or in gross (d), although a power to lease the land does not in general contemplate the separation of such an incident from the land, so as to authorize a lease of part of the land with a right to sport over the remainder (e); a right to hawk, hunt, fish, and fowl (ƒ), although capable of being annexed to a manor (g), that is, to the demesnes of it (h), are in some respects profits à prendre, but not such profits or benefits to be taken from and upon land as are of the same nature as a right of common, and therefore not within the section 1 of this chapter 71. The creation of these rights, indeed, involves a double operation, a licence to enter upon the land, and a grant of the minerals, fish and other game when obtained and taken (i). The right to hunt, however, does not of itself import the right to the animal when taken (k). tween c. 71 and c. 100. The language of the 2 & 3 Will. 4, c. 71, and of the Difference be2 & 3 Will. 4, c. 100, is materially different; in the one the words are "no claim which may be lawfully made at the common law by custom, prescription, or grant," &c.; in the other the words are "all prescriptions and claims of or for any modus decimandi," &c. So that the 2 & 3. Will. 4, c. 71, embraces such claims only as are made by persons who at common law might lawfully have made them, and was never intended to enable persons to take by user a profit à prendre (1). Common causa vicinagii is not strictly and properly Common causa (c) Dayrell v. Hoare, 12 Ad. & E. 356. (d) See The Overseers of Hilton, &c. v. The Overseers of Bones, &c., 1 L. R., Q. B. 359. (e) Dayrell v. Hoare, supra. (f) Wickham v. Hawker, 7 M. & W. 63. (g) Wickhamy. Hawker, supra. (i) See Vaugh. 351; 2 B. & C. (k) 7 Mee. & W. 79. (1) Per Alderson, B., Padwick v. Knight, 7 Ex. 854, 859. a right of common or profit à prendre (m), and therefore not within the former statute (n). Whether a claim of sole and several herbage and pasture in gross be a profit à prendre within the 2 & 3 Will. 4, c. 71, s. 1, or an interest in the land itself (o), and not within that statute, is doubtful (p). It is not a right of common (q), and, even if claimed as appendant or appurtenant, would seem not to be within the statute (r). For the language of the court in pronouncing judgment in the last case leads to the inference that no several and exclusive right is within the 2 & 3 Will. 4, c. 71, s. 1. The first and governing subject of claim referred to is "right of common." This general phrase, which defines no species of common, is no doubt wide enough to include a right of common in gross, as common of pasture; but it is not an apt or proper phrase to designate a several right to the exclusive pasturage of land, or any other several and exclusive right to take any particular profit of land. Easements are the other class of subjects embraced by the 2 & 3 Will. 4, c. 71. An easement has been defined as a service or convenience (s), or a privilege (†) that one neighbour hath of another by writing or prescription without profit, as a way, a sink, or such like (u); and as a right of accommodation in another's land, as distinguished from a right which is directly profitable (x). Thus, a right to turn cattle on the land of another for some specific purpose (y); a right for the inha (m) Vide supra, p. 217. (n) See Shuttleworth v. Le Fleming, 19 C. B., N. S. 687; supra, p. 152. (0) Co. Litt. 4 a, b. (p) See Welcome v. Upton, 5 (r) See Shuttleworth v. Le (s) Cru. Dig., tit. xxxi. ch. i. s. 16, citing Kitch. Courts, 105 b, but the reference is incorrect. (t) Termes de la Ley, tit. Easement, with the same reference; a book of great antiquity and accuracy. Per Bayley, J., 5 B. & C. 229. (u) 3 Hurl. & C. 497. (x) Burt. Comp. pl. 1165. See also Book III. Chap. V. (y) Bailey v. Appleyard, 3 Nev. & P. 257. bitants of a place to go upon a person's land and to pitch their stalls there on market days, without paying anything for the use of the soil (z); a right to have fences repaired by the owner of the adjoining land (a); to water cattle at a pond, and to take the water thereof for domestic purposes for the more convenient use of a messuage (b); to convey water through the land of another, either upon the surface of, or by covered drains in, the land (c); to make channels and towing-paths on the lands of another person (d); to continue a channel open through the banks of a navigation for conveying waste water to a mill (e); to send water over another's land (f); to pass in the barge or vessel of another to church or elsewhere (g); to pass over land to a brook on the opposite side, and to dam up the brook when necessary so as to force the water into a watercourse running across such land to land contiguous, for watering cattle for the more convenient occupation and enjoyment of the latter land by the occupiers thereof (h); to land nets on the soil of another (i); to the access of light (k); to lay on land dung until it is formed into manure and has become fit to be carried (1); are easements. nor mere ease But a right to hunt and to hawk given to one and Rights not the heirs of his body (m), or to hawk, hunt, fish and strictly profits, fowl given to one, his heirs and assigns (n), and, in each ments. case, to his and their servants, upon and over land, if not strictly a profit à prendre (o), is more than a mere (z) Lockwood v. Wood, 8 Jur. 543, 545; 6 Q. B. 31, S. C. (a) See Boyle v. Tamlyn, 6 B. & C. 329, 338. (b) Manning v. Wasdale, 5 Ad. & E. 758. (c) The Governor and Co. of Chelsea Waterworks v. Bowley, 15 Jur. 1129. (d) Hollis v. Goldfinch, 1 B. & C. 205; Ib. 679. (e) The Earl Portmore V. Bunn, 1 B. & C. 694. (f) 19 C. B., N. S. 758. (h) Beeston v. Weate, 5 Ell. & Bl. 986. (i) Gray v. Bond, 2 Brod. & B. 667. See also Shuttleworth v. Fleming, 19 C. B., N. S. 687. (k) See 10 C. B., N. S. 286, 283. ( Pye v. Mumford, 5 Dow. & L. 414. (m) Moore v. The Earl of Plymouth, 1 J. B. Moore, 346; 7 Taunt. 614, S. C. (n) Wickham v. Hawker, 7 M. & W. 63. (0) Vide supra, p. 363. (g) 8 Co. 46 b. Appurtenant, or in gross, and how claimed. Cesser of. Easements within c. 71. Watercourses. easement, and would seem to be a tenement within the statute De donis(p), as, at least, concerning land (9). Easements also, like profits à prendre, may be either appurtenant (r) or in gross (s), and may be claimed, not only by custom (†) or by prescription, or by grant, but by mere user founded on a grant presumed from such user but alleged to be lost or destroyed (u), except perhaps when claimed against the Crown (v). When an easement is granted for a particular purpose, and that purpose is at an end, the easement also ceases to exist (w). The easements specified in the 2 & 3 Will. 4, c. 71, are ways and other easements, watercourses, the use of water (r), and the access and use of light (y). The easement way requires no particular notice here (z). The easement of a watercourse may, in itself, embrace both the right to the use of the channel for conveying the water, and also the right to the water itself, or to the mere use of the water flowing or conveyed along or by the channel (a). But in this statute, a watercourse, and the mere use of water, are treated as distinct easements. The right of sending dirty water into a watercourse is a watercourse within the section 2 (b). So, although there be no right to water itself, a right, (p) 13 Edw. 1, c. 1. (g) Co. Litt. 19 b, 20 a; Moore v. The Earl of Plymouth, supra. (r) Com. Dig., Voc. Chimin, D., 2; 2 Salk. 562; 6 Mod. 4. (s) 1 Bos. & P. 371; Willes, 282, 287. (t) 6 Rep. 60; Co. Litt. 110 b. (u) See Hendy v. Stevenson, 10 East, 55; Read v. Brockman, 3 T. R. 151; Bailey v. Stephens, 10 C. B. 91; Best on Ev., sect. 379. (v) Vide ante, pp. 122, 124. But see 3 T. R. 151. (w) See National Guaranteed Manure Co. v. Donald, 4 Ex., N. S. 8. (x) Sect. 2. (y) Sect. 3. (z) See, however, Bright v. Walker, 4 Tyrw. 502; Onley v. Gardiner, 4 M. & W. 496; Parker v. Mitchell, 11 Ad. & E. 788; Lawson v. Langley, 4 Ib. 890; Tickle v. Browne, Ib. 369; Kinloch v. Neville, 6 M. & W. 795; Beasley v. Clark, 2 Bing., N. C. 705; England v. Wall, 10 M. & W. 699; Holford v. Hankinson, 8 Jur. 463; Pack v. Skinner, 18 Q. B., N. S. 568; Winship v. Hudspeth, 10 Ex. 5; Lowe v. Carpenter, 15 Jur. 883, on this statute. (a) See Irimey v. Stocker, 12 Jur., N. S. 419. (b) Wright v. Williams, 1 M. & W. 77. |