In England, persons of a certain locality or of a certain class may have, by immemorial custom, a right to make use of land belonging to an individual. Thus, there may be a custom for the inhabitants of a certain town to dance or play games on a particular piece of land belonging to an in69. See Braekett v. Persons Unknown, 53 Me. 228, 87 Am. Dec. 548; Stevens v. Taft, 3 Gray (Mass.) 487.

70. See Copp v. Lamb, 12 Me. 312; Dolloff v. Hardy, 26 Me. 545; Coffin v. Lawrence, 143 Mass. 110,

Dividual,73 or to go thereon in order to get water.74 So there may be a custom for fishermen to dry nets on certain land,75 or for persons in a certain trade (victua-lers) to erect booths upon certain private land during a fair.76 The custom, to be valid, "must have continued from time immemorial, without interruption, and as of right; it must be certain as to the place, and as to the persons; and it must be certain and reasonable as to the subject matter or rights created."77

9 N. E. 6; Goulding v. Clark, 34 N. H. 148; Woodbridge v. Proprietors of Addison, 6 Vt. 204.

71. See Mitchell v. Starbuck,

10 Mass. 5; Dolloff v. Hardy, 26 Me. 545; Coburn v. Ellenwood, 4 N. H. 99; Beach v. Fay, 46 Vt. 337; Dall v. Brown, 5 Cush. (Mass.) 289; Inhabitants of Gloucester v. Gaffney, 8 Allen (Mass.) 11.

72. Savignae v. Garrison, 18 How. (U. S.) 136, 15 L Ed. 290; Dent v. Emmeger, 14 Wall. (U. S.) 308, 20 L. Ed. 838; Glasgow v. Hortig, 1 Black (U. S.) 595, 17 L. Ed. 110; Hebert v. Lavalle, 27 111. 448; Lavalle v. Strobel, 89 111. 370; Haps v. Hewitt, 97 111. 498; Page v. Scheibel, 11 Mo. 167; City of St. Louis v. Toney, 21 Mo. 243; Carondelet v. City of St. Louis, 29 Mo. 527; Glasgow v. Baker, 85 Mo. 559; Id., 72 Mo. 441.

A right cannot be acquired by custom to use particular land on navigable water for a wharf or landing place, since this would in effect exclude the owner from all use of the land, and is unreasonable ;78 and so there can be no right by custom to maintain a building or other permanent structure on a person's land.79 Likewise, a right to take profits from land, as distinct from the mere right to use the land, cannot be established by custom, since the effect of such a custom would be to exhaust the profits.80

73. Fitch v. Rawling, 2 H. Blackst. 394; Abbott v. Weekly, 1 Lev. 176.

74. Eace v. Ward, 4 El. & Bl. 702.

The public may, it has been decided, acquire a prescriptive right to procure from a spring water for a drinking trough on the highway. Riser v. Douglas County, 70 Wash. 242, 41 L. R. A. (N. S.) 1066, 126 Pac. 622.

75. Blundell v. Caterall, 5 Barn. & Aid. 268, 295.

76. Tyson v. Smith, 9 Adol. & E. 406.

77. Leake, Prop, in Land, 552. See Co. Litt. 110b; Tyson v. Smith. 9 Adol. & E. 406; Goodman v. City of Saltash, 7 App. Cas. 633.

78. Talbott v. Grace, 30 Ind. 389, 95 Am. Dec. 703; O'neill v.

Annett, 27 N. J. L. 290, 72 Am. Dec. 364; Thomas v. Ford, 63 Md. 346, 52 Am. Rep. 513; Pearsall v. Post, 20 Wend. (N. Y.) 1ll; Post v. Pearsall, 22 Wend. (N. Y.) 425; Bethum v. Turner, 1 Me. Ill; Chambers v. Furray, 1 Yeates (Pa.) 167; Cooper v. Smith, 9 Serg. & R. (Pa.) 25. Compare Knowles v. Dow, 22 N. H. 387.

79. Attorney General v. Tarr, 148 Mass. 309, 2 L. R. A. 87, 19 N. E. 358. A like view was taken as to an asserted public right to pile wood on an individual's land. Littlefield v. Maxwell, 31 Me. 134, 50 Am. Dec. 653.

80. Smith v. Gatewood, Cro. Jac. 152; Id. sub nom. Gateward's Case, 6 Coke 59b; Race v. Ward, 4 El. & Bl. 702; Hill v. Lord. 4S Me. 83: Cobb v. Davenport. 32 N.

L544 Real Property. [Sec. 420

Occasionally in this country it lias been decided that rights to use private land cannot thus be created by custom, for the reason that they would tend so to burden land as to interfere with its improvement and alienation, and also because there can be no usage in this country of an immemorial character.81 In one state, on the other hand, the existence of such customary rights is affirmed,82 and in others this is assumed in decisions adverse to the existence of the right in the particular case.83