Odger's English Common Law

582 DISTURBANCE OF EASEMENTS, &C.
recreation, however, claimed for the inhabitants of several parishes was
held bad. 1
But when the right claimed by custom is a privilege in
the nature of a profit h prendre, much greater difficulty arises.
It was decided long ago (as early in fact as the reign of
Edward IV.) that the inhabitants of a particular locality
cannot claim a right of common by prescription or otherwise,
as a grant cannot in law be made to such a fluctuating body
of persons and their successors. 2
Such a body of persons,
moreover, could never release the grant if made ; and the
whole value of the land would be lost to the grantor, if it
were used by so large a number of persons without restric-
tion ; the exercise of the right would speedily result in the
destruction of its subject-matter.
Nevertheless it is a well-settled principle that a lawful
origin must, if reasonably possible, be presumed for any right
which has been openly enjoyed for a long period. 3 The
Courts will not presume that the rights were created by a
lost Act of Parliament, 4 but, short of this, they have gone
very far. In some cases the judges have even presumed a
grant from the Crown incorporating grantees to such an
extent as to enable them to profit by it. 5
In other cases they
have discovered a declaration of trust by, or grant upon trust
to, a corporation or other person capable of holding the right
in question in favour of the inhabitants or other body for
whom it is claimed.
Apart from these isolated cases, however, it still remained
till 1882 a clear rule of law that a privilege in the nature of
a profit h prendre cannot be acquired by a shifting body of
persons, such as the inhabitants of a borough, parish or town-
ship, either by grant, prescription or custom. In that year,
however, the House of Lords upheld a right of free inhabi-
tants of the ancient borough of Saltash to fish without limit
during Lent for oysters in a fishery in a navigable river
1 Edwards v. Jenkins, [1896] 1 Ch. 313.
2 Gate-ward's Case (1607), 6 Rep. 59 b.
3 Eaigh v. West, [1893] 2 Q. B. 19.
* Chilton v. Corporation of London (1878), 7 Ch. D. 735.
5 Willingale v. Maitland (1866), L. R. 3 Eq. 103.