This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
The Public Health (Support of Sewers) Amendment Act, 1883, provides against any right of support being acquired by a local authority against a mine-owner by reason of anything contained in its Sanitary Act (q).
No support for sewers.
Claims of rights of common and other profits a prendre, become prima facie valid after thirty years' uninterrupted enjoyment (r); and cannot be defeated by mere proof of such enjoyment having commenced at any prior period. But until sixty years' uninterrupted enjoyment, they remain liable to be defeated in any other way in which they might have been defeated before the passing of the Prescription Act. After sixty years' uninterrupted enjoyment, they become absolute and indefeasible, unless proof be given of such enjoyment having been under some consent or agreement expressly made or given for that purpose by deed or writing (s). But a claim to a right of common, etc. may be defeated after thirty years' enjoyment by showing that it could not have had a legal origin (t); and it would seem that the Act does not apply to any case where the establishment of a right by means of it would be a violation of the express terms of statutes prohibiting the granting of such a right (u); nor where the claim is one which cannot be lawfully made by custom, prescription, or presumed grant (x); nor where the claim is to a right in gross (y).
Claims of rights of common and profits a prendre.
(p) L. & N. W. R. Co. v. Evans, 1893, 1 Ch. 16; 62 L. J. Oh. 1; approved in Clippens Oil Co. v. Edinburgh and Dist. Trustees, 1904, A. C. 64; 73 L. J. P. C. 32; and cf. Met. Bd. of Works v. Met. R. Co., (1869) L. E. 4 C. P. 192; 38 L. J. C. P. 172; and see Metropolis Management Act, 1855, ss. 135, 150, 151, and 11 & 12 Vict. c. 112, ss. 38, 66.
(q) And see Re Corp. of Dudley, (1881) 8 Q. B. D. 86; 51 L. J. Q. B. 121; L. & N. W. R. Co. v. Evans, sup.; Jary v. Barnsley Corp., 1907. 2 Ch. 600; and under the Gasworks Clauses Act, 1847, Normanton Gas Co. v. Pope, (1883) 52 L. J. Q. B. 629, 636; 32 W. It. 134; per Fry, L.j.
(r) See Bailey v. Appleyard, (1838) 8 A. & E. 161; 7 L. J. N. S. Q. B. 145. The title acquired by user can be merely co-extensive with the user, Davies v. Williams, (1851) 16 Q. B. 546; 20 L. J. Q. B. 338.
A profit a prendre where unconnected with the ownership of the soil is an incorporeal hereditament which can only be granted by deed; it cannot be reserved (z), nor can it be abandoned (a). Such is a right to hawk or fish, which implies a right to carry away the game or fish (b); and even a right to angle for amusement, leaving the fish on the shore for the landowner, has been held to be of the same nature (c); so also a right to shoot (d). The mere right to follow in the pursuit of game over land, does not of itself import the right to the animal when taken; and, if confined to the individual claimant, would seem to be attributable to a mere personal licence of pleasure: but where the right is exercisable by the claimant or his assigns "along with servants," it is considered to involve a right to carry off the game (e), and is an interest in land within the meaning of s. 40 of the L. P. Act, 1925 (replacing s. 4 of the Statute of Frauds) (f).
Right of fishing, hawking, hunting, shooting.
(s) S. 1 of the Prescription Act; Welcome v. Upton, (1839) 5 M. & W. 398. The Act relates only to claims which may be lawfully made at common law; Morley v. Clifford, (1882) 20 Ch. D. 753. See also Earl Be la Warr v. Miles, (1881) 17 Ch. D. 535; 50 L. J. Ch. 754; Dawson v. M'groggan, (1903) 1 Ir. R. 92. ,
(t) Mill v. New Forest Commrs., (1856) 18 C. B. 60; 25 L. J. C. P. 212; Lord Chesterfield v. Harris, 1908, 2 Ch. 397; 1911, A. C. 623.
(u) Mill v. New Forest Commrs., sup.
(x) Clayton v. Corby, (1843) 5 Q. B. 415; 14 L. J. Q. B. 364; A.-g. v. Mathias, (1858) 4 K. & J. 579; 6 W. R. 780; Hanmer v. Chance, (1865) 34 L. J. Ch. 413; Smith v. Andrews, 1891, 2 Ch. 678, 699; 65 L. T. 175; Goodman v. Saltash (Corp. of), (1882) 7 A. C. 633; Tilbury v. Silva, (1890) 45 Ch. D. 98; 63 L. T. 141; Neill v. Devonshire (Duke of), (1882) 8 A. C. 135; Lord Chesterfield v. Harris, 1908, 2 Ch. 397; 1911, A. C. 623.
(y) Shuttleworth v. Le Fleming, (1865) 19 C. B. N. S. 687; 34 L. J. C. P. 309; Mercer v. Denne, 1904, 2 Ch. 534, 540; 1905, 2 Ch. 538, 586; Ramsgate Corp. v. Debling, (1906) 22 T. L. R. 369; Staffordshire, etc. Navigation v. Bradley, 1912, 1 Ch. 91.
(z) Doe v. Lock, (1835) 2 A. & E. 705; Corcor v. Payne, (1869) 4 I. R. C. L. 380; Wickham v. Hawker, inf.
(a) Neill v. Duke of Devonshire, (1882) 8 A. C. 135; and see Ecroyd v. Coulthard, 1898, 2 Oh. 358; 67 L. J. Ch. 458; Johnston v. O'neill, 1911, A. C. 552.
(b) Wickham r. Hawker, (1840) 7 M. & W. 63; 10 L. J. N. S. Ex. 153; Ewart v. Graham, (1859) 7 H. L. C. 331; 29 L. J. Ex. 88; Fitzgerald v. Firbank, 1897, 2 Ch. 96; 66 L. J. Ch. 529. As to the limitations of a claim to a profit a prendre, see Commrs. of Sewers v. Glasse, (1872) 7 Ch. 456, 465; 41 L. J. Ch. 415; Lord Chesterfield v. Harris, 1908, 2 Ch. 397; 1911, A. C. 623.
The right of fishing in tidal waters is prima facie vested in all the subjects of the Crown (g), and seems to be so vested in them, not as of common right, but by virtue of the ownership by the Crown of the bed of all tidal waters (h). Prior to Magna Charta (i), however, the Crown had power to grant a several and exclusive right of fishing in such waters to individuals, and thereby to destroy the public right of fishing therein.
This power was abolished by Magna Charta (i), and a claim to such a several fishery by an individual can now only be made on the strength of a grant from the Crown prior to the reign of Henry II., or by prescription (k). This public right of fishing extends only so far as the tide flows and reflows (l): nor does the fact of a river being navigable give the public any right of fishing above the flow of the tide (m); nor can the right be acquired by the public by immemorial usage or otherwise (n), though evidence of user by the public as of right is admissible as evidence to defeat a claim to a several fishery (o).