Odger's English Common Law

586 DISTURBANCE OF EASEMENTS, &C.
sports and pastimes in the close of it at all seasonable times of the year at
their free will and pleasure " was held good, the second plea claiming a
similar right " for all persons for the time being in the said parish " was
held bad.
In Earl of Coventry v. Willes, 1 pleas claiming rights for the public to
enter upon Newmarket Common and stay there to witness horse-races
were held bad, Cockburn, 0. J., remarking : " A customary right can
only be applicable to certain inhabitants of the district where the custom
is alleged to exist, and cannot be claimed in respect of the public at
large."
So in Schwinge v. Dowell, 2 Wightman, J., told the jury that a plea
claiming a right in the inhabitants of the manor of Woodford to walk
through the forest " for air and exercise " was disproved rather than
proved by proof that " all the world went wherever they pleased."
A custom or customary by-law, whereby the commoners of a manor
might take or destroy rabbits or game on the waste, is not necessarily void
for unreasonableness. But a custom for any person, not merely any
copyholder, to kill rabbits on a manor without molestation would be on the
face of it unreasonable. 3
There cannot be a valid custom for the fishermen of an ancient borough
to appropriate a portion of the foreshore for the purpose of storing oysters
to the exclusion of the rest of the public, for this would be in derogation of
the public " right of fishing " in the sea. 4
(ii.) "Next the plaintiff must, of course, show that he is
one of the persons entitled to the right claimed.
(iii.) Then he must prove that the defendant has materially
obstructed or disturbed him in the exercise of his right. It
is not enough for him to show that the defendant has done
something which if constantly repeated will ultimately amount
to such a disturbance or obstruction. A mere apprehension
of damage will not suffice.
If one commoner puts more cattle on the common than he is entitled todo,
he is liable to be sued by all or any one of the other. commoners who
have a right to depasture beasts upon the same common ; and it is no-
answer to the action that the plaintiff has himself surcharged the
common, or that the damage is insignificant ; for the wrongdoer might,. by
repeated torts of this sort, eventually enlarge his right. But if the beasts-
have been put upon the common by the lord of the manor or with his
licence and permission, the commoner cannot maintain an action, unless
he has sustained actual damage and can show that there was not a.
1 (1863), 9 L. T. 384.
2 (1862), 2 F. & F. at pp. 848, 849 ; and see the Stonehenge Case, Att.-Gen. v.
Antrobus, [1905] 2 Ch. 188.
8 Coote v. Ford {1900), 83 L. T. 482.
' Corporation of Truro v. Bowe, [1902] A. C. 709.