CLAIM OF EASEMENTS BY CUSTOM. 79 



pleasure ; and in the second, merely as an inhabitant householder of 

 the parish, — decided that such a privilege is not a i^rofd it 2)rendre, but 

 a mere easement. It may be claimed l)y reason of the occupation of an 

 ancient messuage, without any limitation as to the quantity of water 

 taken (/^.). Andj^^r Coleridge J., the right claimed in each count was 

 an easement. Lord Denman C.J. said, "It is not consistent with 

 ordinary language to call the taking of water a profit d, prendre. But 

 assuming it to be so, I cannot see that the declaration here necessarily 

 claims more than enough for the supply of water, for the culinary 

 purposes of the house, and for cattle levant and couchanl on the premises. 

 There is therefore no objection available on general demurrer." It was 

 said, arguendo in Fitch v. Raiding, that a custom to water cattle at a 

 certain watering-place was an easement, and this Avas cited in Blewelt 

 T. Tregonning, and not disputed. In Pain v. PatricJc there is a dictum 

 that a custom alleged by the inhabitants of a vill, or all the parishioners 

 of a parish, for a gateway or Avatercourse, is an easement ; and in 

 Goodag v. Miclictl a wag to a common fountain is mentioned as an 

 easement, claimable for parishioners by custom. 



There cannot he a custom to talce a iwofit in alieno solo. And so in 

 Bleivett V. Tregonning, 3 Ad. & E. 554, the Qaeen's Bench held an 

 alleged custom to be bad for all the inhabitants occupying lands in a 

 district of Cornwall to enter a close and take therefrom reasonable 

 quantities of sand which had been drifted by the wind from the sea- 

 shore. The reason was that the drifted sand had become a part of the 

 close, so that the claim was to take a profit in alieno solo. Lord 

 Denman C.J. observed, " It cannot be said that the inhabitants may 

 take the sand which has drifted at any distance of time, that would place 

 the whole soil at the mercy of any person claiming under the custom." 

 And per Lord Cknnplell C.J. in Race v. Ward : " As to customary rights 

 claimed by reason of inhabitancy, the distinction has always been 

 between a mere easement and a 2^rofit ct 2)rendre. A custom for all the 

 inhabitants of a vill to dance on a particular close at all times of the 

 year at their free will for their recreation has been held good, this 

 being a mere easement {Abbott v. Weeklg) ; but a custom to take as a 

 profit what is valuable would be very injurious to the owner, and of but 

 little benefit to the inhabitants, and is bad. And so we held in Bland 

 V. Lipsconibe, that to a declaration for keeping and entering the plain- 

 tiflf's close, and taking his fish, a custom pleaded for all the inhabitants 

 of the parish to angle and catch fish in tlie locus in quo is bad, as this 

 was a pro/it ci ptrendre, and might lead to the destruction of the subject 

 matter to wdiich the alleged custom applied." 



It was held by Sir TV. P. Wood, V.O. and Bccgleg J., in The Attorney 



