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his ancestors, or in the name of a corporation and its predecessors, or as appurtenant to some estate holden by the claimant.' The inhabitants of a town, as such, cannot claim a right of common, or other profit in alieno .solo, as a custom, for the inhabitants may not have the inheritance. A custom to fish in alieno solo in an unnavigable river, is not a good custom; and such a right to fish, if available at all, must be set up by prescription as belonging to some estate, and should be pleaded with a que estate. The inhabitants of a town or village cannot claim a right to take sand to mix with lime, for the purpose of making mortar, from the land of another, as a custom, though a right to do so may be pleaded in an individual and his ancestors, or through a corporation and its predecessors, or in a que estate, as' a prescription.
Different persons may have an easement upon the same land by different titles, one by grant, another by prescription, and a third by custom; and each must plead his own title, which, if he proves, it is
Perley v. Langley, ub sup.; Waters v. Lilley, 4 Pick. (Mass.) R. 145.
? Co. Litt. 113 b. ; Gatewood's case, 6 Rep. 60; 2 Cro. R. 152; Com. Dig. Prescript. 8 H.; Meller v. Spateman, 1 Saund. R. 346 ; Grumstead v. Marlowe, 4 T. R. 717 ; Post v. Pearsall, 22 Wend. (N. Y.) R. 425.
3 Waters v. Lilly, sup.
* Perley v. Langley, sup. See also Sale v. Pratt, 19 Pick. (Mass.) R. 191.
sufficient, although he may also prove a title in another; provided the titles are distinct and not inconsistent with each other.
Although a several fishery in an arm of the sea may be prescribed for, and may pass as a privilege appurtenant to an estate, yet a prescription for a common of fishery therein as appurtenant to an estate, is bad. Thus, in Ward v. Cresswell, the court held, that, as all the subjects of England might of common right fish in the sea, &c. a prescription for it, as appurtenant to a particular township, was void, and as absurd, as a prescription would be for travelling the king's highway, as appurtenant to a particular
A right of fishery acquired by prescription is divisible, that is, it may be lost as to part and preserved as to part. As it was adjudged in the case of Rogers v. Allen,an exclusive right to dredge for oysters might subsist in a navigable river, as appurtenant to a manor, although the public had the right to the floating fish.
The prescription must be proved to be as extensive as it is laid ;5 so that, if the right is shown to
· Kent v. Waite, 10 Pick. (Mass.) R. 138.
* Carter v. Murcot, ante, p. 270 ; Bagott v. Orr, 2 Bos. & Pull. R.
Rogers v. Allen, Campb. R. 309.
exist in three out of four places, and not in the fourth, the variance is fatal; notwithstanding the alleged trespass is committed where the sole and exclusive right of fishery prescribed for, is proved to exist. But if the prescriptive right in question, is made to appear to be more ample than that claimed, the party prescribing will not fail in consequence.
. The use of all privileges relating to tide waters, being primâ facie common to all, the use by any person of any one of them, however long continued, is nothing more than the exercise of a right he has in common with others; and therefore in order to acquire an exclusive right by long continued usage, or by prescription, the use must be in a manner inconsistent with, and adverse to, the common right. The mere exercise of a common right, however long continued, has never been considered as conferring an exclusive right. Thus, the grant of a several fishery in a public navigable river, cannot be presumed, it has been held, from the mere uninterrupted enjoyment of the privilege of fishery. If such presumption can be made at all from the fact of such enjoyment, it must be shown to have been in exclusion of the right of others; and the absence of an averment to that effect, in a bill praying for an injunction to protect what was claimed as an exclusive right, it has been held, was fatal to the complainant's case. As was said by Gibbs, C. J., if a person wishes to protect his exclusive possession, he must keep up the evidence of his right by guarding it against intruders, though the flowing of the tide is not absolutely inconsistent with the right of private property. In Palmer v. Hicks in New York, the court say, “we will not presume a grant of lands under navigable waters to the owners of the adjacent soil, without evidence of long exclusive possession and use to warrant such presumption.” And on this ground, the court held, that the town of Flushing was not entitled to the right which it claimed to regulate the use of the lands below low-water mark.
i Chalker v. Dickinson, 1 Conn. R. 382. Ib. 510.
* Delaware & Maryland Rail. Ro. Co. v. Stump, 8 G. & Johns. (Md.) 479.
As to the witnesses by whom acts of exclusive ownership and enjoyment may be proved: Where the issue does not affect any common right claimed by prescription, as belonging to the estate of A., one who claims a prescriptive right of common in right of his own estate, may be a witness; for though A. may have such right of common, it does not follow that B. has; nor would the verdict in the action of A. be evidence in B.'s action. But if the issue be on a right of common, which depends on a custom pervading the whole manor, the evidence of a commoner is not admissible; because, as it depends upon a custom, the record in that action would be
1 Miles v. Rose, 5 Taunt. R. 705. And See Ward v. Cresswell, Willes, R. 265.
Palmer v. Hicks, 6 Johns. (N. Y.) R. 133.
evidence in a subsequent action brought by the very same witness to try the same right; and therefore there is good reason for not receiving his testimony in such a case. But the same reason does not hold where common is claimed by prescription in right of a particular estate. In other words, a commoner cannot be a witness to support the right of his fellow commoner, nor can an inhabitant of a particular place, be a witness to prove a prescriptive right common to all the inhabitants of that place ; ? but one may be a witness to support a right by prescription in respect of another's estate, though the witness claim to prescribe in respect to his own estate, upon
the same facts he is called to establish. The inhabitants of Loyd's Neck, in New York, claimed by prescription an exclusive right of fishing for oysters, opposite their respective farms, in an arm of the sea. In an action of trespass by one of them, for a violation of this claim, another interested as a remainder man in a farm adjoining the locus in quo, at Loyd's Neck, was offered as a witness for the plaintiff, and it was held he was admissible. The witness was interested only in the question, and not in the event of the suit.3
· Phil. Ev. 47; Watson v. Shelby, 1 T. R. 302 ; Jacobson v. Fountain, 2 Johns. (N. Y.) R. 170.
? Gould v. James, 6 Cow. (N. Y.) R. 369 ; Jacobson v. Fountain, 2 Johns. (N. Y.) R. 170. 3 Gould v. James, sup.