78 EIGHT TO A WELL. 



liablo to be entirely destroyed. The ai-gmncnt in fi^YOur of the further 

 reason given in Oafeiranrs case, viz., that such a custom could not be 

 realized, applies equally to many kinds of casements by custom. A 

 right to take by custom part of the soil, like sand or clay, or stones, 

 or the produce of the soil, like grass, or turves, or trees, would clearly 

 be bad, for they all come under the category of profit « 2Jrendre, and 

 such a claim which might leave nothing for the owner of the soil is 

 wholly inconsistent with the right of property in the soil. But the 

 spring of water is supplied and renewed by nature ; it must have 

 flowed from a distance by an underground channel ; and when it issues 

 fi'om the ground till appropriated for use, it flows onward by the law of 

 gravitation. While it remains in the field, where it issues forth, in the 

 absence of any servitude or custom giving a right to others, the 

 owner of the field, and he only, has a right to appropriate it, for no 

 one else can do so without committing a trespass ; but when it has left 

 his field he has no more power over it or interest in it than any other 

 stranger." {ii.) 



And where the inhabitants of a township had from time immemorial 

 taken water from a well for domestic purposes, and about fifty years 

 before action the locus m quo was inclosed under a special inclosure 

 act, incorporating the General Inclosure Act then in force (41 Geo. III. 

 c. 100), but neither in the special act nor in the award of the commis- 

 sioners was any mention made of this well, or of any access to it, it was 

 held by the Court of Queen's Bench, on a rule to enter a verdict for 

 the plaintiiF, who had brought an action against the township for 

 breaking his close, that the right to take water from the well was not 

 extinguished by the inclosure ; and that whether the ancient right of 

 access to the well for that purpose was or was not extinguished (and 

 semhk it was not) the inhabitants might in other modes legally get 

 access to the well, so that the fifty years' enjoyment de facto since the 

 inclosure might have a legal origin, and the verdict for the defendant 

 was ordered to stand, {it).) 



According to GatewanTs case, and Grinstead t. Marlow, any mere 

 easernoU can he clamed hy custom. The iidiabitants of a district may, 

 by custom, liave a right to go upon the soil of another to take or to 

 use water. In Weeldy v. Wildman it was decided that inhabitants may 

 liave a right to enter the soil of another to take pot water. Mannrng v. 

 Wasdale, where in the first count of the declaration the plaintiff claimed 

 a right as occupier of an ancient messuage -within the parish of St, Ives, 

 to wash and water his cattle in a certain pond, and also to take and use 

 the water of the pond for domestic purposes for the more convenient 

 use and enjoyment of the said messuage at all times, at his free will and 



