Odger's English Common Law

580 DISTURBANCE OF EASEMENTS, &C.
no interest or property in the thing, and the licensee has no
title to sue " in his own name. 1
In Holford v. Bailey, 2 it was held that the grantee of a several fishery
could sue persons who interfered with his right of fishing ; but a mere
licensee has no right to sue those who interfere with the property over
which the licence extends. 3 " To give the plaintiff a sole and exclusive
right even for an hour, a deed was necessary ;
and that would be a grant
and whether the grantee of the fishery had it in fee or for a term of
years or even an hour, he could sue for a disturbance during the time
that the interest under his grant continued." 4
IY. Customary Eights.
We must next consider a class of rights known as customary
rights. Such rights are vested in the persons who
enjoy them, because they reside within some definite locality,
such as a borough, vill, manor or parish. They are local
rather than personal rights. They are privileges in the
nature either of easements or of profits a prendre. Still they
are not strictly speaking easements, for those who enjoy
them possess no dominant tenement. Neither are they strictly
speaking profits, for those who enjoy them do not do so,
and cannot claim to do so, by grant. A vague fluctuating
body of persons cannot take by grant, nor by prescription
for " all prescription presupposes a grant." 5 They base their
claim on the fact that they are inhabitants of some definite
locality, and as such " have used time out of mind to have
such an advantage or privilege." 6 A custom "is in fact a
local law ; it must hold good within some well-defined and
limited area. "Within that area it must have been in force
continuously, without interruption and acquiesced in by the
persons whom it affected. It must be not unreasonable ; it
must be certain ;
must have been "as of right." ?
and the user on which the claim is founded
i Per Fry, L. J., in Heap, v. Hartley (1889), 42 Ch. D. at p. 470.
2
3
(1849), 13 Q. B. 426.
Newly v. Harrison (1861), 1 J. & H. 393 ; Heap v. Hartley (1889), 42 Ch. D.
461.
* Per cur. in Holford v. Bailey (1849), 13 Q. B. at p. 446 ; quoted with approval
by Rigby, L. J., in Fitzgerald v. Firhank, [1897] 2 Ch. at p. 103.
5 Per Lord Lindley in Hodgson v. Gardner's Co., [1903] A. C. at p. 239.
6 Per cur. in Mayor of Lynn Regis v. Taylor (1684), 3 Lev. at p. 160.
' See ante, pp. 76—86.
;