Perley v. Langley
7 N.H. 233
Superior Court of New Hampshir...
1834
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Ufham, J.

THe .terms- custom, and-prescription, are often *235usеd as synonymous. They are. alike in-this respect, — that no custom or prescription can be legal, but such as has been used time out of mind.,. Co. Lit. 110, 113 ; and they both hаve their obligation originally from the consent-,' either express or. implied, of the parties who are bound by them. The ordinary forms of-pleading a сustom . and prescription are the same, and the difference betwixt, thеm does not generally depend on the nature of the claim set up. The same rights and privileges which may be claimed as a custom, may also bе claimed as a prescription. An easement upon another mаn’s land, such as — a right of way — -a right to turn a plough upon another man’s land, or fоr a fisherman to mend his nets there — a right to have a gateway — nr to pass quit оf toll — may be sustained as a custom, or as a prescription.

If these rights аre common to any manor, district, hundred, parish, or county, as a local right, they are holden as a custom ; if the same rights are limited to-an. individual and his descendants, to a body politic and its successors,, ‍‌​‌​‌‌​‌‌‌‌‌​​​​​‌​‌​​​‌​‌​‌​​​​​‌‌​‌‌‌​​​​​‌‌‌​‍or are attached to a particular estate, and are only exercised by those who have the ownership of such estate, they are holden as a prescription, which prescription is either personal in its charaсter, or is a prescription in a que estate. '

In order, therefore, to determine whether rights are holden as a custom, or as a prescription, it is necеssary to advert merely to the manner in which they are holden, whether as a local usage, or asa personal claim, or dependent on a particular estate. At the same time, there are certain rights that can be holden but in one way, and as .a prescription. ■ ■

All the rights that cаn. be holden as- a custom can: beholden as a prescription ; but not nice versa — and all rights holden as a custom, ‍‌​‌​‌‌​‌‌‌‌‌​​​​​‌​‌​​​‌​‌​‌​​​​​‌‌​‌‌‌​​​​​‌‌‌​‍or as a prescription, are holdеn' by prescription ; that is, in the sense of the term hereused,-by - usage ; but this does not confound the distinction as to the tenure of those rights. . ' . : ~ ...

In this case, the claim set up is-not made as-attaching to *236a person by inheritаnce, to a corporation, or an estate, but is claimed as a local right in the inhabitants of Meredith Bridge Village. The claim is, therefore, made as a custom ; and it becomes material to determine whether such a claim can be by custom.

A distinction has been taken, in all the authorities, betwixt a profit taken ‍‌​‌​‌‌​‌‌‌‌‌​​​​​‌​‌​​​‌​‌​‌​​​​​‌‌​‌‌‌​​​​​‌‌‌​‍from the soil of another, and a mere easement upon the soil. Rights, a prendre — as the right to taking the herbage of the soil by cattle — а right to take away turf, peat, coal, sand or gravel, cannot be аlleged as in the inhabitants of a town, and as a local custom. Such a claim must be sustained as a prescription by the individual through his ancestors, or in thе name of a corporation and its predecessors, or as аppurtenant to some estate holden by the claimant. A mere residеnce is insufficient. It is not essential that such rights be prescribed for in a que estate as holden in the language of 4 Term Rep. 717 ; for all rights that can be sustained by prescription can be prescribed for in a man and his ancestors; and rights in gross can be prescribed for only in this manner, and cannot be claimed in a que estate. 1 Lit., sec. 183 ; 1 Saund. 346. The inhabitants of a town, as such, or the inhabitants of the ancient ‍‌​‌​‌‌​‌‌‌‌‌​​​​​‌​‌​​​‌​‌​‌​​​​​‌‌​‌‌‌​​​​​‌‌‌​‍houses of a town, cannot claim a right of common, or other profit, in alieno solo, as a custom, for the inhabitants may not have the inhеritance. Co. Lit. 113, b ; Gateward’s case, 6 Co., 60; 2 Cro. 152; 2 do. 446; Com. Dig., Prescription, H.; Co. Lit., sec. 183, 120, b ; Mellor vs. Spateman, 1 Saund. 346; Grimstead vs. Marlowe, 4 D. & E., 717 ; Waters vs. Lilley, 4 Pick. 145.

Inhabitants may prescribe for an easement in alieno solo ; as for a way — for liberty to play at rural sports — to draw nets оn another’s land — to pass free of toll — for a public landing placе, &c. Bacon’s Abrid., Custom, C ; Cro. Eliz. 180; Cro. Ca. 419; 13 Pedersdorf's Abr., note, 502; Fetch vs. Rawling, 2 Hen. Bl. 393 ; Millechamp vs. Johnson, Willes, 205 ; Coolidge vs. Learned, 8 Pick. 505 ; Sar*237geant vs. Ballard, 9 Pick. 251. But there are no authorities that sustain the removal of the soil, or the taking of profits from the soil of another, ‍‌​‌​‌‌​‌‌‌‌‌​​​​​‌​‌​​​‌​‌​‌​​​​​‌‌​‌‌‌​​​​​‌‌‌​‍as a custom. There is, therefore, no justification for the breaking and entering in this case, upon such a plea.

Plea adjudged bad.