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 a profit & prendre. Now, 
it is an elementary rule of law that a profit & 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 tv 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, @ 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 
