Odger's English Common Law

GENERAL LOCAL CUSTOMS. 7&
stood to relate to an interruption of the right ; for an inter-
ruption of the enjoyment of the right for only ten or twenty
years will not destroy the custom. Thus if the inhabitants of
a parish have a customary right of watering their cattle at a
certain pool, the custom is not destroyed though they do not
use it for ten years :
it only becomes more difficult to prove
but if the right be anyhow surrendered for a day, the custom
is quite at an end.
(3) The particular customary right must have been asserted
openly and acquiesced in by the persons whom it affected.
The enjoyment under it must have been peaceable, and not
the subject of contention and dispute. In other words, the
user must have been " as of right."
But " a custom
(4) The custom must also be reasonable. 1
may be good though the particular reason of it cannot be
assigned, for it sufficeth if no good legal reason can be
assigned against it." 2 A custom is not unreasonable merely
because it is contrary to a particular maxim or rule of the
common law. Thus the customs of gavelkind and borough-
English, mentioned above, are legal and binding though
directly contrary to the law of descent. Again, " a custom is-
not unreasonable because it is prejudicial to the interests of a
private man, if it be for the benefit of the commonwealth."
Thus a " custom to turn the plough upon the headland of
another, in favour of husbandry, or to dry nets on the land
of another in favour of fishing and for the benefit of naviga-
tion," 3 or to take water from the well of another, 4 is a legal
and binding custom. But as such customs derogate from the
5 '
general rights of property, they must be construed strictly;
they must not be " enlarged beyond the usage." 6
The deputy day meters of the City of London were held to be entitled,
by immemorial custom to the exclusive right, by themselves or their
i Sowerby v. Coleman (1867), L. R. 2 Ex. 96 ; R. v. Venn (1875), L. R. 10 Q. B.310>
2 1 Bla. Com. 77.
s Per Tindal, C. J., in Tyson?. Smith (1838), 9 A. &E. at p. 421 ; and see Lord
Falmouth v. George (1828), 5 Bing. 286 ; Mercer v. Denne, [1904] 2 Ch. 634 ;.
[1905] 2 Ch. 538.
* Race v. Ward, (1856), i E. & B. 702 ; (1857), 7 E. & B. 384.
5 See the remarks of Lord Denman, C. J., in Rogers v. Brenton (1847), 10 Q. B.
at p. 67 ; and of Bayley, J., in Richardson v. Walker (1824), 2 B. & C. at p. 839..
6 Per Cockburn, C. J., in Muggleton v. Barnett (1857), 2 H. & N. at p. 680.
;