Odger's English Common Law

THE NATURE OF A CUSTOMARY RIGHT. 583
belonging to the borough. 1
It is difficult to determine the
precise effect of this decision upon the rule laid down in
Gatewardh Case. 2
But this rule does not apply to the freeholders or
copyholders of a manor. A manor is a district of lands
holden by a lord and by tenants under him, over which
lands and tenants he exercises certain rights - and juris-
diction. The copyholders of such a manor can by custom
acquire against their lord rights of common in the waste of
the manor. They are not, indeed, such an indefinite body of
persons as are the inhabitants of a village ; moreover they all,
ex hypothesi, occupy tenements within the manor. The free-
holders of a manor, too, whatever their number may have
become by sub-division of the freeholds, can claim by pre-
scription a profit d prendre within the manor
;
3 and when the
right has been once acquired, they may continue to exercise
it, although the manor has become merely a "reputed
manor." 4
Instances of such customary rights within a manor
have been given in an earlier chapter. 5
In order to succeed in an action for the disturbance or
obstruction of a customary right over the land of another, it
is necessary for the plaintiff to establish three things :
(i.) that a defined class of persons, such as the inhabitants
of a particular place or district, have from time immemorial
exercised the right claimed over the land in question openly,
peaceably, without interruption and without permission from
the owner of the land
;
(ii.) that the plaintiff is a member of such class ; and
(iii.) that the defendant has materially obstructed or
disturbed the plaintiff in the exercise of his right.
(i.) The main difficulty in such cases is to establish the
right. Legal memory, as we have seen, 6 dates from the first
year of Eichard I. It was never necessary, however, for the
i Goodman v. Mayor of Saltash (1882), 7 App. Cas. 633.
2 (1607), 6 Rep. 69. b.
s Lord Chesterfield v. Harris, [1911] A. C. 623.
* Neal v. Duke of Devonshire (1882), 8 App. Cas. 135.
5 See Customa of a Manor, ante, pp. 82—86.
6 Ante, p. 568.
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