258 FOREST OF DEAN. 



alleged right, if it ever existed, must have reposed on one of 

 three foundations : custom, prescription, or lost grant. The 

 right of the Free Miuers is incapable of being established by 

 custom, however ancient, uniform, and clear the exercise of 

 custom may be. The alleged custom is to enter the soil of 

 another, and carry away portions of it. The benefit to be 

 enjoyed is not a mere easement; it is & profit a prendre. Now, 

 it is an elementary rule of law that a profit a prendre in 

 another's soil cannot be claimed by custom, for this, among 

 other reasons, that a man's soil might thus be subject to the 

 most grievous burdens in favour of successive multitudes of 

 people, like the inhabitants of a parish or other district, who 

 could not release the right. The leading case on the subject 

 is Gateward's case, which has been repeatedly followed and 

 never overruled. . . . 



" The next question is : Can such a right as this be claimed 

 by prescription ? I will assume, against the fact, that there is 

 no evidence to negative prescription. The present is a claim 

 not only to carry away the soil of another, but to carry it 

 away without stint or limit; it is a claim which tends to the 

 destruction of the inheritance, and which excludes the owner. 

 A prescription to be good must be both reasonable and certain 

 (Comyn's Digest, "Prescription"); and this alleged prescription 

 seems to me to be neither. . . . 



" The only remaining question on this part of the case is 

 this : Can the claim be sustained by evidence of a lost grant ? 

 Prescription presupposes a grant ; and if you cannot presume 

 a grant of an unreasonable claim before legal memory, a fortiori 

 can you not presume one since. The defendants have relied 

 on statutes of limitation ; but, as to that, a claim which is 

 vicious and bad in itself cannot be substantiated by a user, 

 however long." 



Fortunately for the Free Miners, their rights were 

 not in issue in this case. They had already been 

 determined and legalised by the Act of 1838, which 



