When reasonable as to them. When unreasonable as to other tenants and the lord. time to time such portions of the waste as he, in his discretion, should think fit, could not be supported, because it would be in destruction of the right of common of the commoners existing from time immemorial (x). But an immemorial usage for the lord to dig clay upon the waste may be valid (y); for by digging for clay, he takes from the land a product of a particular species, but the land afterwards remains capable of yielding food fit for the feeding of cattle. Indeed, it frequently happens that land, besides the support which it yields for the food of man or of cattle, has within it some valuable product, as marl or limestone, which it is desirable for the owner of the waste to obtain; and it is not unreasonable that the lord of a manor, when he grants rights on that land, should reserve to himself the right of taking such marl or limestone. But when he takes them, he does not permanently deprive the commoners of that benefit which they are entitled to derive from the surface of that part of the land from which the marl or limestone is so taken. The nature of the subject which is taken from the earth shows that such reservation was not unreasonable. The exercise of such right will no doubt interfere with the privilege of the commoners during the time the produce is taken from the earth, and until the surface reproduces pasturage, but they are not wholly and permanently deprived of the right (z). A similar usage for a tenant, restricted to his own tenement, but in relation to it unlimited, is also reasonable (a). On the other hand, a customary right claimed by a tenant may be so prejudicial to, not only the other tenants but also the lord, as to be unreasonable; as being destructive of the thing in which the right is claimed. Thus a custom that all the customary tenants having gardens parcel of their customary tenements might dig and take away from the waste turf to be used on the tenements for the improvement thereof, without limit as to the time of taking it, or the quantity to be taken, is bad in law as being indefinite and uncertain, and also destructive of the common (b). judicial to the lord but not But a customary right claimed by a copyholder affect- Reasonable ing his own tenement only, although prejudicial to the although prelord, but not to the other copyholders, may be reasonable; as a custom for a copyholder of inheritance without licence to get clay without limit out of his tenement for making bricks to be sold off the manor (c). to other Every custom must also be certain in its nature (d), Must be ceror reducible to a certainty (e), as to the persons for tain. whom (ƒ), and the place where it is alleged (g). The properties of every valid custom are fully and admirably expounded and illustrated in the great case of Tanistry in Ireland (h). Customs, especially where they derogate from the Construed general rights of property, must be construed strictly (i). strictly. SECTION II. Who may claim by Custom. class of persons of a par Custom is for many persons if all but one be not Undefined dead (k), and generally as an undefined class, but of particular locality, as copyholders of a manor (1), the ticular place. a (g) Bennett v. Read, 1 Anstr. (h) Dav. Rep. 32 a et seq. supra. (k) Rowles v. Mason, 2 Brownl. 192, 198. (1) Co. Litt. 113 b. Surveyors of highways. inhabitants of a place (m), and to be exercised there (n), and not for all persons generally, for that would be the common law and not custom (o). And the class cannot claim otherwise, not by prescription as distinguished from custom, for prescription presupposes a grant, and they are incapable, as such, of taking by grant (p), except from the Crown (q); and the 2 & 3 Will. 4, c. 71, does not enable them so to claim (r). And the custom being fixed to the land, except perhaps in the case of a claim by custom to a modus decimandi (s), all the occupiers and possessors of the land may have advantage of the custom (t). In Padwick v. Knight (u), which was an action of trespass, the defendants pleaded that the close of the plaintiff was parcel of certain waste land within the parish; that from time immemorial all persons residing within the parish, whose office or duty might require them from time to time to cause all highways lying within the parish to be repaired, had right to enter the said close and to get and carry away therefrom stones, gravel, &c. for repairing the said highways as occasion required; that the defendants were duly appointed surveyors by the inhabitants of the said parish residing there, and that the duty of the defendants as such surveyors required them to cause the said highways to be repaired as occasion should require. The defendants (m) Gateward's case, 6 Co. 60; S. C., nom. Smith v. Gatewood, Cro. Jac. 152; Day v. Savadge, Hob. 85; Ventr. 390; Co. Litt. 110b; Co. Cop. s. 33; Abbot v. Weekly, 1 Lev. 176; 4 Rep. 32; Cases Temp. Hardw. 293; Kit. 209, 210; 5 B. & Ald. 279; 2 H. Bl. 398; Tyson v. Smith, 9 Ad. & E. 406; Earl Coventry v. Willes, 12 W. R. 127; 5 B. & Ald. 729; 3 Hurl. & C. 497. (n) Gateward's case, 6 Rep. (0) Co. Litt. 110 b. See Tyson v. Smith, supra. (p) Bro. Abr. Custom, pl. 46; Lockwood v. Wood, 6 Q. B. 50; supra. (4) 6 Q. B. 62; supra. (s) See Bennett v. Reade, 1 Anstr. 322, 330. (t) 7 Edw. 4, 26; 18 Edw. 4, 3; Weekly v. Wilman, 1 Lord Raym. 405, 406; Gravesend case, 2 Brownl. 177. (u) 7 Ex. 854. also pleaded that the close was waste land contiguous to and next adjoining to the sea shore between high water mark and low water mark, that there were from time immemorial divers ancient public highways within the parish, and that there was within the parish an immemorial ancient custom to enter, &c. and to get and carry away, &c. as in the former plea; and these pleas were held bad, but on what grounds the report does not state. Alderson, B., thought the plea wrong in form, and Martin, B., seemed to think that such a right might be good by prescription. The ratio decidendi seems to be that the claim could not be sustained by prescription as distinguished from custom, because being in effect by inhabitants of a parish they cannot so claim (x); nor by custom, because they cannot so claim an interest in alieno solo, and the claim was of that nature. The claim was also invalid as being unreasonable, because indefinite and uncertain, as well as destructive of the subject in which the right was claimed (y). tom. But if the thing claimed be in its nature claimable Persons having by prescription only, but they who have it and ought unable to preright but to have it in justice, cannot prescribe for it from neces- scribe may claim by cussity, there, in order that the undoubted right may not be defeated, they shall be allowed to claim it by custom. For that which is matter of interest, as the taking a profit from the soil, must for its existence have some person in whom it is; and a flux body, which has no entirety or permanence, cannot take that interest which by the supposition is immemorial and permanent, because, from its nature, it cannot prescribe for anything (z). Necessity, however, will control this and will allow the claim to be supported by custom, as in the case of the lord of a manor and his copyholders who claim common in his wastes (a), and of persons entitled in Cornwall to (a) Vide supra, p. 142. (a) See Gateward's case, 6 Co. 59. Claiming dig and take tin and tin-ore on the land of another, paying a customary proportion of the ore raised on a bona fide working of the land for mining purposes (b). In some cases, however, a person certain may claim virtute officii. by custom and virtute officii (c), as for fees of office (d), or a marriage fee (e), and in some cases a person certain can claim by custom only (ƒ). By class of persons in one place to take a thing in another. In Blewett v. Tregonning (g), Littledale, J., enquired, arguendo, whether there was any case in which the inhabitants of one parish had established a custom to take a thing in another. In Gateward's case (h), such a custom was alleged, but was held to be bad as repugnant in itself. It has also been held that burial fees (i) and marriage fees (k) cannot be claimed for the performance of the ceremony by another person in any other church or parish than that of the claimant. Easements. SECTION III. What may be claimed by Custom. The thing claimed by custom must be, in general, either a mere easement in alieno solo (1), or such an easement together with an exemption from all payment for the exercise of it, as the easement of going on land and pitching stalls on it on market days without paying anything for the use of the soil (m), or in the nature of |