Odger's English Common Law

584 DISTURBANCE OF EASEMENTS, &C
plaintiff to produce affirmative evidence that the custom had
extended over so long a period. On proof of the enjoyment
of a customary right for a much less period, juries were held
justified in finding, if there was no evidence to the contrary,
that the custom had existed from time immemorial. A period
of twenty years was held sufficient in one case. 1 The usual
course is for the plaintiff to call aged witnesses resident in
the neighbourhood, who depose to the fact that the custom
existed as far back as they can remember.
When an onerous liability has been asserted and submitted to for a long
series of years, although the evidence begins well within modern times
anything not manifestly absurd, which will support and give a legal origin
to such a custom, will be presumed. Therefore a liability to repair a sea-
wall submitted to since 1818 was presumed to have a legal origin. 2
The owners of an oyster fishery had, since the reign of Elizabeth, held
courts and granted for a reasonable fee licences to fish to all persons
inhabiting certain parishes who had been apprenticed for seven years to
a duly licensed fisherman. In an action by a person so qualified against
the owners of the fishery for not granting him a licence to fish on payment
of the usual fee, it was held that, as every act of fishing had been by licence,
there had been no enjoyment as of right so as to give rise to a custom. 3
An immemorial custom for fishermen, inhabitants of a parish, to spread
their nets to dry on the land of a private owner situate near the sea in the
parish at all times necessary or proper for the purposes of the trade or
business of a fisherman, is a valid legal custom. Such a custom may be
established by evidence of user, though the periods of user and the
manner and character of the nets dried may have varied from time to
time. The use of a modern mode of drying the nets will not deprive the
fishermen of the benefit of the custom, provided that an unreasonable
burden is not thereby cast upon the landowner. Where the sea has
gradually receded, land added by accretion takes the character of, and
becomes subject to the same customs as, the land to which it is added. 4
"But the prima facie case, established by the evidence of
aged witnesses, will be destroyed if the defendant can show
affirmatively that the custom commenced after the year 1189.
Tor no lost grant can be presumed in favour of the inhabi-
tants of a locality; nor will the Prescription Act, 1832,
assist the plaintiff. It is true that section 2 of that Act
expressly mentions any " claim, which may be lawfully made
i R. v. Jolliffe (1823), 2 B. & C. 64.
2 L. $ N. W. By. v. Fobbing Levels Commissioners (1896), 66 L. J. Q. B. 127.
3 Mills v. Mayor, #c, of Colchester (1867), L.. B. 2 C. P. 476 ; 3 ib., 575.
* Mercer v. benne, [1904] 2 Oh. 531 ; [1905] 2 Ch. 538.
5 2 & 3 Will. IV. c. 71. See ante, p 570.