Neutral Citation Number: [1862] 
(1862) 12 CB (NS) 91; 142 ER 1077 

  2 May 1862 

B e f o r e :

ERLE, C. J.
WILLES, J.
KEATING, J.
____________________

Between:
BAILEY
v
STEPHENS

____________________

The first count of the declaration stated that the defendant, on the 1st of November, 1861, and on divers other days and times between that day and the commencement of the suit, broke and entered a certain close of land of the plaintiff called Short Cliffe Wood, inclosed by a hedge-fence, and bounded on the north west by other lands of the plaintiff, and on the south east by lands in the occupation of one James Emery, situate in the parish of Blagdon, in the county of Somerset; and that the defendant then felled, cut down, prostrated, and destroyed two trees of the plaintiff in the said close called Short Cliffe Wood there then standing and growing, and took and carried away the same and converted and disposed thereof to his own use. 

There was also a count for money lent, money paid, money had and received, and money found due upon accounts stated. 

The defendants pleaded, - first (to the first Count) not guilty, - secondly, that the said close and trees were not respectively the close and trees of the plaintiff. 

Third plea, that, at the time of the alleged trespass, William York was seised in his demesne as of fee of and in a certain close called Bloody Field, immediately adjoining the said close of the plaintiff, and that the said William York and all those whose estate he had, and his and their tenants, had from time, whereof the memory of man runneth not to the contrary enjoyed the right, at their free will and pleasure, to enter by themselves and their servants upon a part or strip, to wit, a lugfall, of the said close of the plaintiff, adjoining the said close of the said William York, for the purpose of cutting down and carrying away, and to cut down and carry away and convert to his and their own use the trees and wood growing and being on the said strip or lugfall, as to the said close of the said William York appertaining: and that the said William York before the alleged trespass demised the said Bloody Field, with its appurtenances, to James Emery, for a term of years not yet expired, who entered into possession of the same, and was before and at the time of the alleged trespass in possession thereof under the said demise as tenant thereof to the said William York; and that the said trees in the declaration mentioned were growing and being on the said strip or lugfall, and that the alleged trespass was committed by the defendant as the servant and by the authority of the said John Emery, and on his behalf, oil the said strip or lugfall, and not elsewhere in the said close of the plaintiff, in the exercise of the said right, and was a user by the said James Emery of the said right. 

Fourth plea, that the said James Emery, at the time of the alleged trespass, was possessed of the said land called Bloody Field immediately adjoining the said close of the plaintiff as aforesaid, and that the occupiers thereof for sixty years before this suit enjoyed, as of right, and without interruption, the right to enter at their free will and pleasure, by themselves and their servants, into a part or strip, to wit, a lugfall, of the said close of the plaintiff, next adjoining the said land of the said James Emery, for the purpose of cutting down and carrying away, and to cut down and carry away and convert to their own use, the trees and wood growing and being in the said strip or lugfall, as to the said land of the said James Emery appertaining; that the said trees in the declaration mentioned were growing and being on the said strip and lugfall; and  that the said trespass was committed by the defendant as the servant and by the authority of the said James Emery, and on his behalf, in the said strip or lugfall, and not elsewhere in the said close of the plaintiff, in the exercise of the said last-named right, and was a user by the said James Emery of the said right. 

Fifth plea, that the said James Emery, at the time of the alleged trespass, was possessed of the said land called Bloody Field immediately adjoining the said close of the plaintiff as aforesaid, and that the occupiers thereof for thirty years before this suit enjoyed as of right and without interruption the right to enter at their free will and pleasure, by themselves and their servants, into a part or strip, to wit, a lugfall, of the said close of the plaintiff, next adjoining the said land of the said James Emery, for the purpose of cutting down and carrying away, and to cut down and carry away and convert to their own use, the trees and wood growing and being in the said strip or lugfall, as to the said land called Bloody Field appertaining; that the said trees in the declaration mentioned were growing and being in the said strip or lugfall; and that the said alleged trespass was committed by the defendant as the servant and by the authority of the said James Emery, and on his behalf, in the said strip or lugfall, and not elsewhere in the said close of the plaintiff, in the exercise of the last-named right, and as a user by the said James Emery of the said right. 

Sixth plea, that, at the time of the alleged trespass, the said William York was seised in his demesne as of fee of and in the said close of land called Bloody Field, immediately adjoining the said close of the plaintiff as aforesaid, and long before the time of the alleged trespass, by a deed made between the then owner of the said close now of the plaintiff, and which said owner was then seised thereof in fee, and the then owner of the said land called Bloody Field, who was then seised in fee of the said last-named land, and whose estate therein the said William York at the time of the said alleged trespass had (but which deed had been lost or destroyed by accident), the said then owner of the close now of the plaintiff granted to the said then owner of the said land called Bloody Field, his heirs and assigns, the right for himself and themselves, and his and their tenants, occupiers of the said land for the time being, at their free will and pleasure, by themselves and their servants, to enter upon a certain strip of the said close of the plaintiff, next adjoining the said close called Bloody Field, to wit, a lugfall of the said close of the plaintiff, measured from the boundary of the said two closes, for the purpose of cutting down and carrying away, and to cut down, carry away, and convert to his and their own use, the trees and wood growing and being in the said strip or lugfall, as to the said close called Bloody Field appertaining; that the said James Emery was at the time of the alleged trespass tenant to the said William York of the said close called Bloody Field, and as such tenant, and by virtue of the said grant, was entitled to the right, at his free will and pleasure, by himself and his servants, of entering into the said strip or lugfall for the purpose aforesaid, and of cutting down, carrying away, and converting to his own use the trees and wood growing and being in the said strip or lugfall; that the said trees in the declaration mentioned were growing and being in the said strip or lugfall; and that the said trespass was committed by the defendant as the servant and by the authority of the said James Emery, and on his behalf, in the said strip or lugfall, and not elsewhere in the said close of the plaintiff, in the exercise of the said last-named right, and was a user by the said James Emery of the said right. 

Seventh plea, to the residue of the declaration, never indebted. The plaintiff demurred to the third, fourth, fifth, and sixth pleas, the ground of demurrer stated in the margin being, "that the plea shews no defence to the action, and claims too large a right." Joinder. 

Montague Smith, Q. C. (with whom was Barstow), in support of the demurrer. The claim is too large: to be valid, it must be connected with the enjoyment of the estate, and must be measured by that enjoyment. In Clayton v. Corby, 5 Q. B. 415, 2 Gale & D. 174, in trespass for breaking the plaintiff's close and digging and carrying away clay, the defendant justified as owner of a brick-kiln, and pleaded that all occupiers thereof, for thirty years, had enjoyed, as of right, etc, a right to dig, take, and carry away from the close so much clay as was at any time required by him and them for making bricks at the brick-kiln, in every year, and at all times of the year: and it was held that the claim was unreasonable and bad. The 1st section of the Prescription Act enacts that "no claim which may be lawfully made at the common law, by custom, prescription, or grant, to any right of common or other profit or benefit to be taken and enjoyed from or upon any lands," except, etc., "shall, where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right thereto without interruption for the full period of thirty years, be defeated or destroyed by shewing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of thirty years." Lord Denman, in giving the judgment of the court in Clayton v. Corby, says: "It is observable that, in all cases of a claim of right in alieno solo, whether immediately or in any degree resembling the present, such claim, in order to be valid, must be made with some limitation and restriction. In the ordinary case of common appurtenant, the right cannot be claimed for commonable cattle without stint, and to any number 3 but such right is measured by the capacity of the tenement in question to maintain the cattle during the winter; levancy and couchancy must be averred and proved. Again, in the case of common of estovers, or a liberty of taking wood, called in the books house-bote, plough-bote, and hay-bote, such liberty is not wholly vague and indeterminate, but confined to some certain and definite use. The like of the common of piscary. The nature of these rights is thus compendiously, but, we believe, accurately given by Mr. Justice Blackstone, 2 Comm. 35, "These several species of commons do all originally result from the same necessity as common of pasture, viz. for the maintenance and carrying on of husbandry: common of piscary being given for the sustenance of the tenant's family; common of turbary and fire-bote for his fuel; and house-bote, ploughbote, cart-bote, and hedge-bote, for repairing his house, his instruments of tillage, and the necessary fences of his grounds, - that is, for a certain and definite- purpose." Here, the plea is altogether deficient in this requisite. In The Attorney-General v. Mathias, 27 Law J., Ch. 761, it was held that a profit a prendre in another man's soil cannot be claimed by custom, however antient, uniform, and clear the exercise of that custom may be; and that a right to carry away the soil of another, without stint, cannot be claimed by prescription. Byles, J., in delivering the opinion of the court, there says: "A prescription, to be good, must be both reasonable and certain; Com. Dig. Prescription (E. 3), (E. 4); and this alleged prescription seems to me to be neither. Thus, a claim of a common without stint annexed to a messuage without land is bad: Benson v. Chester, 8 T. R. 396. Lord Coke says, - Co. Litt. 122 a.,- that you must not exclude the owner of the soil. And in Clayton v. Corby, 5 Q. B. 415, 2 Gale & D. 174, although a jury had found a thirty years' exercise without interruption, as of right, of a claim by prescription to dig clay in the plaintiff's land for the defendant's brick-kiln, and though the verdict could not be assailed, yet the court of Queen's Bench gave judgment for the plaintiff non obstante veredicto, on the ground that such a prescription was radically vicious, and incapable of being sustained, for that it was an indefinite claim to take all the clay; in other words, to take the whole close. That case rests on the soundest rules of law, and it is an authority expressly in point, shewing that the strongest evidence of user could not support this as a prescriptive claim." In Ackroyd v. Smith, 10 C. B. 164, in trespass quare clausum fregit, the defendants justified under a supposed right of way conveyed to them by A. The plea, after stating the conveyance to A. of "a certain close, and certain plots, pieces, or parcels of land, etc., together with all ways, etc., particularly the right and privilege to and for the owners and occupiers of the premises conveyed, and all persons having occasion to resort thereto, of passing and re-passing, for all purposes, in, over, along, and through a certain road," etc., alleged an assignment by A. to the defendants of the said lands, tenements, hereditaments, premises, and appurtenances" granted by the former deed; and then averred that the trespasses complained of were committed by the defendants, being owners of the said lands, etc., and in the possession and occupation thereof, in using the right of way for their own purposes, The plaintiffs, after setting out the deed upon oyer, demurred specially to the plea, on the grounds that the defendants claimed a more extensive right than that granted by the deed, and that, if the right as claimed was granted by the deed, it was not assignable. In delivering the judgment of the court there, Cresswell,,J. (p. 187), says: "If the right conferred by the deed set out, was only to use the road in question for purposes connected with the occupation and enjoyment of the land conveyed, it does not justify the act confessed by the plea. But, if the grant was more ample, and extended to using the road for purposes unconnected with the enjoyment of the land, - and this, we think, is the true construction of it, - it becomes necessary to decide whether the assignee of the land and appurtenances would be entitled to it. In the case of Keppell v. Bailey, 2 Mylne & K. 517, the subject of covenants running with the land was fully considered by Lord Chancellor Brougham; and the leading cases on it are collected in his judgment. He there says (p. 537), 'The covenant (that is, such as will run with the land) must be of such a nature as 'to inhere in the land,' to use the language of some cases; or 'it must concern the demised premises, and the mode of occupying them,' as it is laid down in others: 'it must be quodammodo annexed and appurtenant to them,' as one authority has it; or, as another says, 'it must both concern the thing demised, and tend to support it, and support the reversioner's estate.' Now, the privilege or right in question does not inhere in the land, does not concern the premises conveyed or the mode of occupying them: it is not appurtenant to them. A covenant, therefore, that such a right should be enjoyed, would not run with the land. Upon the same principle, it appears to us that such a right, unconnected with the enjoyment or occupation of the land, cannot be annexed as an incident to it: nor can a way appendant to a house or land be granted away, or made in gross; for, no one can have such a way but he who has the land to which it is appendant: Bro. Abr. Graunt, pl. 130 (citing, M. 5 H. 7, fo. 7, pl. 15). If a way be granted in gross, it is personal only, and cannot be assigned. So, common in gross sans nombre may he granted, but cannot be granted over: per Treby, C. J., in Weekly v. Wildman, 1 Lord Raym. 407. It is not in the power of a vendor to create any rights not connected with the use or enjoyment of the land, and annex them to it: nor can the owner of land render it subject to a new species of burthen, so as to bind it in the hands of an assignee." That goes even further than is necessary for the present purpose. In Co. Litt. 4 b., it is said: "A man seised of divers acres of wood grants to another omnes boscos sues, all his woods; not only the woods growing upon the land passe, but the land itselfe, and by the same name shall he recovered in a praecipe; for, boscus doth not onely include the trees, but the land also whereupon they grow. The same law if a man in that ease grant omnes boseos suos crescentes, etc., yet the land itselfe shall passe, as it hath been adjudged." And see Doe d. Kinglake v. Beviss, 7 C. B. 456, 485.

Prideaux, contra. The pleas are based upon a special agreement between the former owners of the respective closes, in derogation of the rights of the owner of the servient tenement. The policy of the law is, to uphold such special agreements, unless there is something in them which is contrary to public policy: and the onus probandi is cast upon the party who relies on an invalidity arising upon that ground. In Cruise's Digest, vol. iii., title xxxi., Prescription, ch. 1, §11, it is said: "A prescription by immemorial usage can in general only be for things which may be created by grant; for, the law allows prescriptions only to supply the loss of a grant. Antient grants must often be lost; and it would be hard that no title could be made to things lying in grant, but by shewing the grant. Upon immemorial usage, therefore, the law will presume a grant, and a lawful beginning, and allows such usage for a good title: but still it is only to supply the loss of a grant. Therefore, for such things as can have no lawful beginning, nor be created at this day by any manner of grant, or reservation, or deed, that can be supposed, a prescription is not good." In Dowglas v. Kendal, Cro. Jac. 256, to trespass for taking and carrying away the plaintiff's thorns, the defendant justified, "because the place where, etc. is an acre, and that he is seised in fee of a messuage and three acres of land in Chippingwarden aforesaid, and that he and all whose estate it was, etc. have used from time to time to cut down and take omnes spinas crescentes upon the said place; "and the justification was sustained. That, though a necessary allegation where the claim is of a right of common, is not so where the party claims the entire right. If a man may prescribe for all the thorns growing upon a particular close, it is difficult to see why he should not also prescribe for timber. In Stanley v. White, 14 East, 332, to an action of trespass for cutting down and converting trees, which the defendant justified as growing upon his land and freehold, the plaintiff replied that the trees were his freehold, and not the freehold of the defendant: and this was held to be proved by shewing that they grew on a certain woody belt fifteen feet wide, which surrounded the plaintiff's land, but was undivided by any fences from the several closes adjoining, of which it formed part, belonging to different owners; and that from time to time the plaintiff and his ancestors, at their pleasure, cut down for their own use the trees growing within the belt, and that the several owners of the different closes inclosing the belt never felled trees there, though they felled them in other parts of the same closes, and that, when they made sale of their estates, the trees in the belt were never valued by their agents, because they were reputed and considered to belong to the plaintiff and his ancestors, in which the several owners acquiesced. Lord Ellenborough, in giving judgment, said: "The presumption from the evidence is that all the land of the belt belonged originally to the same person, and that, when he granted it out to others, he reserved the right to the trees then growing or thereafter to grow in the soil: and he and those claiming under him prove their right by exercising acts of ownership in cutting and taking away the trees from time to time, as occasion requires, in different parts of the belt. It is evidence of one reserved right in the original grantor, and not of different rights created by different conveyances. The soil of the whole was probably granted out entire in the first instance, reserving the trees; and the original grantee may have afterwards granted it out in divided portions to different persons. Whatever title is consistent with the established course of enjoyment may be proved by such enjoyment: and here was evidence of a right such as I have stated, and there is no evidence of any adverse right." It was then suggested that, though this might be evidence for the plaintiff of his having an interest in the trees, it was no evidence of a freehold in them, as claimed by him in his replication; that one might have a right to trees as a profit a prendre in another's soil, without having a freehold in the trees; and that it was difficult to say how one could have a freehold in the trees growing in another's soil, and that here the plaintiff did not claim the soil itself. But Lord Ellenborough observed "that the plaintiff may not have claimed the whole that he was entitled to; and that perhaps the right to the land itself might be put in hazard, if the defendant could succeed in shewing that the plaintiff could have no freehold interest in the trees apart from the soil. But, even if that were so, perhaps a reservation of the trees then growing or thereafter to grow in the soil might be taken to reserve so much of the soil as was necessary for the growth and sustentation of the trees." In Sir Francis Barrington's case (Chalke v. Peter), 8 Co. Rep. 136 b., the facts were these: Sir Robert Rich, Lord Rich, was seised of the forest or chace of Hatfield (whereof the place where, etc. was parcel) in fee, and by his deed indented, bearing date the 30th of January, 19 Eliz., for good consideration, granted to Sir Thomas Barrington, Knt., and his heirs, omnes boscos arbores tam manem' subboscos et spinas quam alia genera quorum cunque ad tune crescent, stant' et existent', simul cum omnibus arboribus vocat' timber-trees, boscis, subboscis, et spinis quibusounque, qurn ad aliquod tempus extunc imposterum forent' crescent', stant', renovant', sive existent' in et super illis partibus foreste praed', communiter vocat' Bushend quarter, et quarterium vocat' Takely quarter (except the land and soil of the same wood), with liberty to inclose them, and to hold them inclosed for the preservation of the spring of wood, which should be for such time as by the laws and statutes of the realm is appointed and enacted, and not otherwise, absque molestatione seu interruptione of the said Lord Rich, his heirs or assigns, and to exclude the deer and all other cattle out of the wood so inclosed, and to have the herbage and feeding thereof, as any owner of the wood might do by the laws and statutes of this realm, without interruption of the said Lord Rich, his heirs or assigns. It was resolved "that Sir Francis Barrington has an inheritance as profit apprendre in alieno solo, and that the soil remains to the Lord Rich." If a right to cut trees in another man's soil can be granted, these pleas are sustained. Liford's case, 11 Co. Rep. 46 b., recognizes this, that, according to the terms of the grant, you may or may not give a fee. Lord Coke says: "This difference may be collected out of Ive's case, is the fifth part of my Reports, fo. 11. Vide 14 Hen. 8, fo. 1 a. b. If I by deed grant all my trees within my manor of G. to one and his heirs, the grantee shall have an inheritance in them, without any livery and seisin. Vide Sir Francis Barrington's case, in the 8th part of my Reports, fo. 137. And in a praecipe brought against lessee for life, where the trees are excepted, you need not in such case except the trees, because no preecipe lies of them, but they shall be recovered by him who has right paramount by the recovery of the land." A grant of all saleable woods growing was held not to pass the soil: Pincomb v. Thomas, Cro. Jac. 524. As to the other point, in Hoskins v. Robins, 2 Wins. Saund. 323, in replevin, the defendants made cognizance as bailiffs of the lords of the manor of Blisland, as damage feasant: the plaintiff pleaded in bar that, within the said manor of Blisland, there are, and from time whereof, etc. were, divers customary tenements parcel of the said manor, and demised and demisable by copy of court roll of the said manor, at the will of the lord, according to the custom of the said manor; and that, within the said manor, there is, and from time whereof, etc. there was, a custom that all the customary tenants of the customary tenements of the said manor "have had, and have used and been accustomed to have, the Sole and several pasture in the said places in which, etc., yearly and every year, for the whole year, at their will and pleasure, as belonging to their said customary tenements." After verdict for the plaintiff, it was moved in arrest of judgment, first, that it is not shewn what estate the copyholders mentioned in the plea had in their customary tenements to which they claimed the sole and several pasture. Secondly, the custom is not good to exclude the lord for the whole year, and cannot have a good commencement; for, though the lord may grant it by deed to one or more freeholders, and therefore they may prescribe if the grant was before time of memory, yet he cannot grant it to his own customary tenants, on account of the debility of their estate, especially if they are only estates for life or years, as, for anything that appears to the contrary, they are. And, although it be true that by custom copyholders may have common in their lord's soil, because it is to be intended that it was with the permission of the lord at first for the better improvement of their copyhold estates, and the lord might very well spare such common, because he had enough besides for his own cattle, and by such constant usage it has at last arisen into a custom; yet there was not the same reason here, because no usage with the permission of the lord at first can wholly exclude the lord himself nolens volens, and vest all the interest in the copyholders, who at first were bare tenants at will to the lord. Thirdly, that it is not alleged that the copyholders have the sole pasture for their cattle levant and couchant on their tenements, for otherwise they cannot appropriate it to their tenements: and he cited Noy's Rep. 145, Jefferys and Boyd's case, where one prescribed for common appurtenant to land, and did not say for cattle levant and couchant, and therefore it was held ill. Saunders, for the plaintiff, as to the first exception, answered that it was not material to shew what estate the copyholders have in their several customary tenements; because, be their several estates either in fee, or for life, or years, yet the custom hath annexed this sole pasture as a profit a prendre or perquisite to their estates for the time being; and they claim it by the custom of the manor, and not by prescription, for, they cannot prescribe at all against their own lord, nor against any other but only in the name of their lord: but it is otherwise with respect to any tenants of freehold estates at the common law, for, if they claim any such benefit, they must shew their estates, and prescribe in the name of the tenant in fee by a que estate: but here the tenants by copy claim only by the custom, and, for the reason before mentioned, it is not necessary for them to shew their estates in certain. And, as to the second exception, he said that the custom was good, and might have had a reasonable beginning: and that it was good he cited the case of Pitt v. Chick, Hutton, 45, where it is adjudged that one may prescribe for the sole feeding, because it might have commenced by grant; and then, if it may be pleaded by prescription in this case, it may be good by custom; and such custom might commence at first by the voluntary agreement of the lord with his copyhold tenants that they should have the sole pasture, to induce them to hold their customary estates, which then were only bare estates at will, and to bestow their pains and labour in improvement, as well for the benefit of the lord himself, as for their own proper advantage; and so a continued usage has now made a custom, for the same reason that it has now fixed the estates of copyholders and made them permanent, and enabled the copyhold tenants to maintain an action against the lord, if he puts them out of their copyhold tenements against the custom, though their estates originally were merely at the will of the lord. As to the third exception, he answered that true it is that a man who claims only common appurtenant to his land ought to say for his cattle levant and couchant, or otherwise his prescription is not good; because in that case he claims but part of the herbage, and the rest the lord is to have, and therefore the commoner ought to say for his cattle levant and couchant, for that is the standard or meteward of the profit he is to have; that is to say, grass for all his cattle levant and couchant on his land, and no others; and therefore, if he puts in any cattle which are not levant and couchant, he does a wrong to the lord, and shall be punished as a trespasser for them. But it is otherwise here, for the copyholders here claim all the herbage, and wholly exclude the lord; therefore it is not material whether all the grass is depastured by cattle levant and couchant, or any others, for there is no more mischief or wrong to the lord in one case than in the other. And the court overruled all these exceptions, for the reasons of Saunders; so that the plea in bar was upheld. It is submitted, therefore, that it is established by the authorities above cited, first, that the right here claimed is not unreasonable in point of law; and, secondly, that it may pass by a grant. In Day v. Spooner, 1 Rol. Abr. 402, pl. 3, Cro. Car. 432, Sir W. Jones, 375, it was held that, if A. and all those whose estate he has in the manor of D., have had from time immemorial a fold-course, that is, common of pasture for any number of sheep not exceeding 300 in a certain field, as appurtenant to the manor, he may grant over to another this fold-course, and so make it in gross; because the common is for a certain number, and by the prescription the sheep are not to be levant and couchant on the manor, but it is a common for so many sheep appurtenant to the manor, which may be severed from the manor, as well as an advowson, without any prejudice to the owner of the land where the common is to be taken. The case of Hoskins v. Robins, is recognized in Jones v. Richard, 5 Ad. & E. 413, 1 Nev. & P. 477, 6 Ad. & E. 530. One may very well imagine a good reason for such a grant as this, the owner of the dominant tenement may have been entitled to house-bote, plough-bote, or hedge-bote over the whole of the land. 

Smith, in reply, was stopped by the court. 

ERLE, C. J. We are much obliged to Mr. Prideaux for the assistance he has afforded us; but, after giving the best attention I could to his able argument, I come to the conclusion that the pleas are bad, and therefore that our judgment must be for the plaintiff. The pleas set up a right in the occupiers of the close of the defendant to go upon the close of the plaintiff and to take all the wood that shall be growing there. It is a claim, therefore, of a right appurtenant to the land of the defendant, to take all the profits of the land of the plaintiff, wholly unconnected with the defendant's land; and to take that as passing with the estate of the defendant. Now, all the diligence and all the learning that Mr. Prideaux has brought to bear upon the matter have failed to enable him to produce any authority for such a right as that which the defendant here claims. The case of Dowglas v. Kendal, Cro. Jac. 256, was a prescription for the owner of an estate to take, as appurtenant to that estate, all the thorns that should grow upon the land of the plaintiff, to be used at the house and in the tenement of the defendant; and it falls within a class of cases perfectly well known to the law, that the owner of an estate may claim, as appurtenant to that estate, a profit to be taken in the land of another, to be used upon the land of the party claiming the profit. But that does not bear upon the present case, because this is a claim by the owners or occupiers of the defendant's close to cut down the trees on the plaintiff's land, and to sell and dispose of them at pleasure, wholly irrespective of the land of the defendant. Mr. Prideaux has further cited the case of Sir Francis Barrington, 8 Co. Rep. 136, Liford's case, 11 Co. Rep. 46 b., and several other cases, which shew that the owner of land may grant to a man and his heirs the right to take, for instance, all the wood or all the grass that shall grow upon the land of the grantor. That would be what we call a grant in gross passing to him and his heirs; and it may be construed to mean all the land or all the pasture, that is, the surface of the land; or it may be construed to be a profit a prendre – a profit taken out of the land, and lying in grant. All the cases to which our attention was drawn as supporting the defendant's argument have been cases where the grant is in gross, to a man and his heirs, and not to a man and all who may thereafter occupy a certain close. That class of cases, therefore, can have no bearing on this. The case of Hoskins v. Robins, 2 Wis. Saund. 323, has been much pressed. There, there was a prescription very nearly to the effect of that claimed here: but I think the distinction which I pointed out in the course of the argument was one that is fully justified by our law; it was a claim to have the pasture by one of the customary tenants of a manor against the lord of the manor. There are many rights well known in manors, and capable of being supported, which arise entirely out of and are dependent upon the peculiar relation between the lord and the copyholder: but the analogy cannot be borne out between those cases and a case like this. All cases of grants are supposed to pass between the tenant in fee-simple of the servient tenement and the tenant in fee-simple of the dominant tenement, wholly irrespective of the rights of any other. The case of Stanley v. White, 14 East, 332, and other cases stand upon the reservation of a right, - the reservation of a right (construed to be a reservation of the land itself) in the trees. It is a claim of the land, not a claim, as this is prescribed, of a right as appurtenant to the estate, and yet wholly unconnected with the estate; a right to take all the growth of a certain kind upon the land. I cannot find any authority for such a claim. The case of Ackroyd v. Smith, 10 C. B. 164, cited for- the plaintiff, is strong to shew that the owner of the dominant tenement cannot claim, as appurtenant to that tenement, a profit wholly unconnected with the enjoyment of the right of property in the dominant tenement. I therefore think the claim set up upon the present occasion is not supported by any authority, and that our judgment must be against the defendant. 

WILLES, J. I am of the same opinion. With reference to the first plea, which sets up a prescriptive right, it amounts to this, that, before the time of legal memory, some one made a grant to some one else, whereby the occupiers of the defendant's close for the time being, ad infinitum, were to be entitled to cut all the trees growing in the close of which the plaintiff was in possession at the time the trespass was committed. The simple answer to that, is that it is not an incident which can be annexed by law to the ownership, much less to the occupation of the land. I wish to guard myself against being supposed to deny that there may be a grant by A. to B. of the right to enter and cut trees in a given close, analogous to that which one has seen in mining setts, of the right to enter and to work mines within a given area, and to take away the minerals there found, - a grant of a right to work and take minerals, unaccompanied by a grant of the mines themselves. I also wish to guard myself against being supposed to say that the interest in either of those grants cannot be assigned over, so that the assignee could not exercise it against the original grantor. It is unnecessary to express any opinion upon that. But, for all these positions, when it may become necessary to decide them, it may be well to refer to the case of Muskett v. Hill, 5 N. C. 694, 7 Scott, 855, where it was held that a licence to search for and raise minerals and also to carry them away and convert them to the licencee's own use, passes an interest which is capable of being assigned. In the judgment in that very important case, which appears to have received great consideration, a passage is cited from Vaughan's Reports (Thomas v. Sorrel, Vaughan, 351), where it is said "A dispensation or licence properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful which without it had been unlawful; as, a licence to go beyond the seas, to hunt in a man's park, to come into his house, -are only actions which, without licence, had been unlawful. Bit a licence to hunt in a man's park, and carry away the deer killed to his own use; to cut down a tree in a man's ground, and to carry it away the next day after to his own use; are licences as to the acts of hunting and cutting down, but, as to the carrying away the deer killed and tree cut down, they are grants." And, that such a grant to a man and his assigns carries an interest which is assignable, appears from the cases which are referred to in that judgment. But, assuming such grants have been made, I apprehend it is clear they can only be made in gross. They convey an interest to the grantees, which grantees, if they wish to convey, must convey by the ordinary conveyances known to the law: and it is not because the grantee may happen to be the owner of the close at the time at which the grant is made to him, that such a conveyance may be dispensed with in favour of the person who may from time to time thereafter become the owner of the freehold of the close, or take the licence of the owner of the freehold in the close. And the reason is a simple one, and it will be found in that class of cases now not often referred to, because the law depends principally upon the statute of Henry the Eighth. I mean the case of a conveyance by which a certain incident is granted which, though beneficial to the grantee of the land so long as he remains the owner of it, and beneficial in respect of his ownership of the land, can be of no benefit to any other person. And the authorities are to this effect that, at common law, a benefit of that description went into whosoever hands the land might pass. The exception was the case of landlord and tenant, where the benefit runs, but, in the case of the freehold interest, the benefit only runs and the burden does not, - a distinction which has been overlooked at least on one occasion. But, in order to enable the assignee of the land to take advantage of such a benefit, it must be a benefit falling within the definition I have given, - a definition frequently given with reference to the question whether a covenant runs with a reservation in cases arising under the statute of Henry the Eighth, whether it was beneficial to the land and beneficial in respect of the ownership of the land, and not beneficial to any other person. Probably a further limit may be put, namely, whether the incident was an incident of the ordinary and usual kind. With these limits, there is no doubt the benefit granted to the owner in fee of the land might pass to the owner in fee who succeeds him, either by inheritance or by grant. The occupier might well plead by way of prescription such a right, because it might have been acquired by grant; but, in respect of a matter that does not fall within that description, it is perfectly clear it cannot be made appurtenant; and, if it cannot be made appurtenant, you cannot of course prescribe a claim in respect of it, but must claim by shewing there has been a conveyance of the right. This plea does not shew any conveyance of the right to him, but simply shews that the tenant or occupier has the surface of the land to which it is alleged to be annexed. The law on this subject is adverted to, I observe, in the 3rd edition of Gale on Easements, in the notes in pp. 10-13; and also in the case of Welcome v. Upton, 6 M. & W. 536, where the question arose whether the Prescription Act does or does not apply to a case of easement in gross. There is no doubt an easement in gross could not be claimed by an occupier under the Prescription Act, because under the Prescription Act, as has been pointed out already, the claim is by custom, prescription, or grant; and there is no doubt that a right could not be acquired under that act, by twenty, thirty, or sixty years' enjoyment, according as it might be, whether an easement or a profit a prendre, except it was capable of being annexed to land within the rule I have mentioned. But the question has arisen whether it is not possible to plead a right in gross in the manner pointed out by the subsequent section, not a section giving the right, but a section giving the mode of pleading. It is perfectly clear to my mind, that it cannot be so pleaded without shewing something more than that the person is in possession as occupier; it must be shewn that he is heir or assignee of the person to whom the right in gross has been granted. The mere fact of his being in possession does not shew that. Therefore, notwithstanding the learned discussions that have taken place as to whether the right of an easement in gross may be pleaded in the form given under the Prescription Act, it is quite clear to my mind that nothing has passed affecting the right of prescription, and the fourth and fifth pleas are invalid. With respect to the sixth plea, that falls under the same principle as the third. It speaks of an express grant, and the third plea speaks of prescription. The result is that an absurdity and an anomaly in the law is excluded by this judgment. Can any one conceive anything more absurd than that B. should purchase from A. in 1800 the right to all the trees in Black Acre, and that there should have been put into the conveyance these words, for the sake of caution, "heirs, assigns, and occupiers or tenants of A.," then in the year 1862, A. should let his close of White Acre to a tenant from year to year, and that tenant should be allowed to grant to his successor any title to cut down the trees which had been purchased by B. of his ancestors by a distinct conveyance of which he might have had no notice whatsoever. I think all the pleas are bad. 

BYLES, J. I am of the same opinion. Mr. Prideaux's best plea, as it seems to me, is a plea of a lost grant; and that may be considered in this stage of the discussion as an existing grant; and the effect of it is, that at some distant period the owner of the servient tenement granted to the owner of the adjoining dominant tenement, and to his heirs and assigns, the right to cut down all the trees and wood of every description, for any purpose, to be used where he pleased; and I think the authorities adduced by Mr. Prideaux clearly bring him half way towards the goal. They shew that this is a profit a prendre, in which a man may have an inheritable estate: and my Lord Chief Justice pointed out in a very early stage of the argument what was the real difficulty. This may go to a man's heirs: but, how can it go to his assigns? It is in no way connected with the enjoyment of the dominant tenement. There is really no more connection here, than if the owner of an estate in Northumberland were to grant a right of way to the owner of another estate in Kent; because, as has been stated (see the case of Ackroyd v. Smith), an incident of this nature cannot, even by express words in an existing deed, be connected with the estate by the mere act of the parties. It must, in addition to that, have some natural connection with the estate, as being for its benefit, or, as has been expressed, it must inhere in the estate. Therefore, if an express grant to this effect had been produced between the grantee and grantor, and going as between the heirs of the grantee and grantor, it cannot run with the estate. Lord Brougham observed, as quoted in that case, that no new incident can be connected with the estate. I own it seems to me there is a further objection to the plea of prescription, and also to the thirty years plea and the sixty years plea; and I agree with my Brother Willes, and I adopt his expression to the full extent, that such a claim of prescription as this is very absurd. That being so, it is unreasonable; and it is laid down that prescriptions must be reasonable. It is not enough to say it is possible to be granted. Even if this could by law be granted, I think it falls within the objection to a prescription, that it is unreasonable, and not only ought not to be inferred by a jury, but cannot be inferred in point of law, when such a right is claimed. I think, for these reasons, and I have no doubt whatever that Mr. Prideaux has laid before us all the cases upon the subject, that all the four pleas are bad, and the first three worse than the last. 

KEATING, J. All the pleas demurred to in this case speak of a claim to exercise upon the land of another a right having no reference to the occupation of the land to which the right so sought to be exercised is alleged to be attached. That seems to be, in a legal point of view, very like a contradiction in terms, and not supported by any authority; and therefore I think the pleas are bad. 

Judgment for the plaintiff. 

Prideaux prayed leave to amend by limiting the claim to trees, etc., to be used on the close in the occupation of the defendant. 

ERLE, C. J. Upon payment of costs, the amendment may be made within eight days, otherwise judgment.