220 TOLLABB FABNEAM. 



1878, Chief Baron Kelly delivered judgment, on behalf 

 of the Court, in favour of Lord Rivers, and refused to 

 admit the claim of the villagers. 



" If," he said, " such a right could be claimed by custom 

 there is evidence of user which, coupled with the evidence 

 of reputation, might raise a question whether the custom 

 did not exist. But the right claimed is ' a profit a prendre' in 

 the soil of another, and the authorities are uniform, from 

 Gateward's case in Coke's Reports, that such a custom is bad 

 in law. . . Many sound reasons are given in the authorities 

 for this conclusion. 



" It might be added that where inhabitancy is capable of 

 an increase almost indefinitely, and if the right existed in a body 

 which might be increased to any number, it would necessarily 

 lead to the destruction of the subject-matter of the Common. 

 There cannot, therefore, be such a custom ; and for the same 

 reason and others there cannot be a prescription, and there could 

 not be a valid grant to so fluctuating a body, or a body so in- 

 capable of succession, in any reasonable sense of the term, so 

 as to confer a right upon each succeeding inhabitant. 



" There was a considerable argument before us upon the 

 effect of a grant by the Crown to the inhabitants of a parish or 

 village. The question seems to have arisen in early times, and 

 there are several decisions in the year books on the subject; 

 and the effect of them appears to be that where there is a grant 

 by the Crown to the inhabitants of a particular parish, if the 

 grant is made for a specified purpose, it has the effect of in- 

 corporating them so as to carry that purpose into effect. . . 



'* In this case we are called upon to say that because there 

 has been user in the inhabitants, there has been a grant in such 

 a form as to make them into a body corporate, having perpetual 

 successors. It appears to us that we ought not to make this 

 presumption, not because it is impossible, but because it is 



