Odger's English Common Law

78 CUSTOMS.
(1) In order that a local custom may be legal and binding,
it must have been in use in the locality for a considerable
time. If any one can show that it commenced after the first
year of the reign of Richard L, it is no good custom.
It is not, however, necessary to produce evidence extending
over so long a period. On proof of enjoyment for a much less
period (e.g., for twenty years or so), juries were held justified in
finding, in the absence of evidence to the contrary, that the
custom has existed from time immemorial. 1 And now, where
a claim by custom " may be lawfully made at common law "
to any right of common or other profit or benefit to be taken
and enjoyed from or upon the land of any person, or " to any
way or other easement, or to any watercourse, or to the use
of any water to be enjoyed or derived " upon or from the land
of any person, the period of use necessary to support such a
claim is regulated by sections 1 and 2 of the Prescription
Act, 1832, 2 which was passed to shorten* "the time of
prescription in certain cases."
" A defendant may no doubt defeat a custom by showing that it could
not have existed in the time of Kichard I. ; but he must demonstrate its
impossibility, and the onus is on him to do so if the existence of the
custom has been proved for a long period ;
this was done, for instance, in
Simpson v. Wells, 3 where the claim of a custom to set up stalls at the
Statute Sessions for the hiring of servants was defeated by showing that
such sessions were introduced by the Statutes of Labourers, the first of
which was in the reign of Edward III. . . . Not only ought the
Court to be slow to draw an inference of fact which would defeat a right
that has been exercised duriDg so long a period as the present unless such
inference is irresistible, but it ought to presume everything that is reason-
ably possible to presume in favour of such a right." 4
(2) It must be proved to have been continuous ; any inter-
ruption would cause a temporary ceasing, and the revival givesit
a new beginning which will be within time of memory, and
thereupon the custom will be void. But this must be under-
1 Jenkins v. Harvey (1836), 1 Cr. M. & E. 877 ; cited in Master Pilots, #c, of
Newcastle-upon-Tyne v. Bradley (1852), 21 L. J. Q.B. 196 ; B. v. Joliffe (1823),
2 B. & C. 51 ; Duke of Beaufort v. Smith (1849), 4 Bxch. 450.
2 2 & 3 Will. IV. c. 71. See Disturbance of Easements, &c.,post, pp. 565—596.
3 (1872), It. B. 7 Q. B. 214. A different rule prevails in the case of such an
immemorial custom at a fair ; see the judgment of Blackburn, J., ib. at pp. 216,.
217 ; and Elwood v. Bulloch (1844), 6 Q. B. 383.
* Per Harwell, J., in Mercer v. Demw, [1904] 2 Ch. at pp. 555, 556.