Knowles v. Dow

Gilchrist, C. J. The custom alleged is that the inhabitants of Hampton have had, from time immemorial, the liberty and — 404 — privilege of hauling sea-weed and flats-weed upon the close, and there depositing it, and afterwards of carrying it away at their pleasure. It is said by the plaintiffs that the custom, as alleged, is unreasonable. In the case of Tyson v. Smith, 9 Ad. & E. 406, the custom was that every liege subject exercising the trade of a victualler, might enter on the plaintiffs’ close at the time of certain fairs, and erect booths, stalls, tables, and posts, and continue them a reasonable time after the fairs. It was said by Tindal, Lord Ch. J., that a custom is “ a usage which obtains the force of law, and is, in truth, the binding law within a particular district, or at a particular place of the persons and things which it concerns.” It must be reasonable; “and this is a question which it belongs to the judges of the land to determine.” The views of the Court are, that a custom is not unreasonable, merely because it is contrary to a particular maxim of the Common Law; as the custom of gavelkind is contrary to the law of descent. Nor is it unreasonable because it is prejudicial to the interests of a private man, if it be for the benefit of the commonwealth ; as the custom to turn the plough upon the headland of another, in favor of husbandry, or to dry nets upon the land of another, in favor of navigation. But a custom injurious or prejudicial to the many, and beneficial only to some particular person, is repugnant to the law of reason. But the present custom is in fact in favor of the many, and the only party against whom it is set up, and by whom it is now opposed, is the lord of the manor. It is not void as being against law ; and if alleged to be void, because inconvenient in a high degree in its enjoyment, and therefore unreasonable, the judges must look to the probabilities of the case, and be satisfied that the inconvenience is real, general, and extensive, before they hold a custom bad upon that ground which a jury have found to exist and to have been acted upon from beyond the time of legal memory. Upon these grounds the Court of Queen’s Bench held that the custom in the case cited was not unreasonable. — 405 — In the case of Bradbee v. Christ’s Hospital, 4 Mann. & Gr. 714, it was held, that a custom to erect a hoarding (which is a fence inclosing a house and materials, while builders are at work) so as to obstruct a part of a public way, for the purpose of building or pulling down a house, is not unreasonable. The hoarding, it is said, may be necessary for the protection of the public. In Leuckhart v. Cooper, 3 Bing. N. C. 99, the Court held a certain custom unreasonable, because it was in restraint of foreign trade. In the case of Blewett v. Tregonning, 3 Ad. & E. 554, it was held, that sand blown by the wind from the seashore upon the plaintiff’s close and there deposited, could not be taken from the close to be used as manure, by virtue of a custom, on the ground that the sand was a part of the soil, and inseparable from it; that there was no mode of ascertaining what was sand blown there from the sea-shore, and what was the original soil, and that there could not be a custom to take a profit in alieno solo. So, a custom to dig mines so as to injure the foundation of the plantiff’s house, is unreasonable, and cannot be supported. Hilton v. Granville, 5 Ad. & E. N. S. 701. And many of the ancient cases referred to in the decisions cited, are collected in Bac. Abr. Customs, C. In the present case, the custom alleged and substantially proved, was to deposit upon the beach or sand-hills of the plaintiffs the sea-weed gathered between high and low-water-mark. In this there seems to be nothing unreasonable. It is for the benefit of the inhabitants of Hampton. As Tindal, Lord Oh. J., said, “ the custom is in favor of the many, and the only party against whom it is set up, and by whom it is now opposed, is the lord of the manor.” It certainly is full as reasonable as the cases put by Tindal, Lord Ch. J., and stated in Bacon, as good customs. This exception, we think, must be overruled. The plaintiffs contend that there was no evidence competent to be submitted to the jury in support of the custom alleged. It appears from the evidence of John Page, that twelve persons from the west part of Hampton, and two persons from Hampton Falls, had deposited sea-weed there. David Page testified that — 406 — more than one balf the people from the east part of the centre of Hampton, of whom he remembered the names of thirteen, and “not many,” which may fairly enough be construed to mean some persons, from the west part of Hampton, had done so. Josiah Page said that all persons had deposited sea-weed there when they pleasedj' and that he had known a great many persons to do it. Here are thirty persons, whose names were given by the witnesses, who lived in Hampton, and who had been known to haul and deposit sea-weed upon the close. It is not argued, and there is no evidence, that any persons but inhabitants of Hampton deposited sea-weed there. In the case of Roe v. Jeffrey, 2 M. & S. 92, the question was whether there was a custom within the manor to bar entails by surrender. In support of the custom one instance only was proved. Lord ElleiiborougJi said, “ the evidence unrestricted is certainly evidence of a custom. It is true that one act undisturbed, does not make a custom, but it will be evidence of a custom.” In the present case there is proof that thirty persons in Hampton were accustomed to deposit sea-weed. Now the question is not whether some persons did not do so, but whether there is or is not sufficient evidence to be submitted to the jury from which they may find the existence of the custom. The fact that the witnesses saw persons there, principally from certain specified parts of the town, merely shows what would naturally happen, that those persons who lived nearest to the place of getting the sea-weed would be the persons most frequently to be seen there. We think the evidence was competent to be submitted to the jury. It is not necessary, in our opinion, that there should be evidence of the limitation of the custom to the inhabitants of Hampton, farther than was shown in the case. The proof is, that the inhabitants of Hampton deposited the sea-weed. Josiah Page testified that .every body did so when they pleased. Put there is no proof that any persons, excepting inhabitants of Hampton, had any inclination to do so; nor that the people of the State generally, or of the county, were ever seen there. — 407 — The plaintiffs contend that the proof varies from the allegation, which is of the right of hauling sea-weed upon the close and depositing it, and afterwards of taking and carrying it away every year, and at all times of the year, at the defendant’s free will and pleasure ; that the custom pleaded is general, to haul seaweed without limit as to quantity, while the proof is of a restricted usage, to haul it only when the persons had got “ more than a load.” John Page testified that the custom was to haul the sea-weed to the beach-hills, and leave it there, when they had got more than they wished to haul away, until it should be convenient for them to remove it. David Page said that when they had collected more than a load, they “ shot down ” the sea-weed upon the top of the hills. Now it appears that they deposited the sea-weed upon the top of the hill, when it w’as convenient so to do ; and the substance of the testimony of both the witnesses is, that when they had got “ more than a load ” to carry home, they left it. This is certainly no proof of a restricted usage. It is said also that the custom is restricted, by the evidence, to sea-weed procured outside of the beach-hills east of the plaintiffs’ marsh. But this is a mistake. Only David Page speaks of that place, and he was merely describing a place where he saw persons getting sea-weed, which certainly does not show any variance. He was not proving a custom to get it from that place ; and if he had been, the testimony of the other witnesses shows no restriction as to place, so that there still would be competent evidence to be left to the jury. The plea is of a custom to deposit the sea-weed, and carry it away at all times of the year, at the defendant’s free will and pleasure. The evidence of John Page is that they hauled it there, and left it when they had got more than they wished to haul home, until it should be convenient for them to remove it. This certainly shows the custom substantially as alleged. There is no doubt on general principles that the custom must be proved as alleged. The right claimed must not be greater than the right proved. Drewell v. Fowler, 3 B. & Ad. 735. But if the right proved be greater than that claimed, it would — 408 — seem not to be a variance, for that reason, notwithstanding the nisi prius ruling of Lord Kenyon in Wilson v. Page, 4 Esp. 71, cited by the plaintiffs. In that case, the defendant pleaded a custom for the tenants of a particular copyhold tenement to cut turf, and offered to prove a general usage for all the copyholders of the manor at large to cut turf, but without being able to prove the particular usage as to this tenement. Lord Kenyon held that he was confined to proof of the custom pleaded. But in Milward v. Hibbert, 3 Ad. & E. N. S. 120, the defendant pleaded a certain custom of trade at London. The Court held that there was evidence of the custom laid as a custom of London, though the witnesses said that such customs also prevailed in other English ports. Lord Penman said, “ it rather appears to us that the custom might be properly described as a custom of trade in London, though it should also exist in other ports.” In Coolidge v. Learned, 8 Pick. 504, it was held that the use of a place for sixty years, as a public landing-place would support a plea that the place was a landing-place for the inhabitants of Watertown. In Soane v. Ireland, 10 East, 259, proof of a quondam manor which had ceased to exist as a legal manor, and existed now only by reputation, was held sufficient evidence of an allegation that a party was seized of a manor of F. Lord MlenborougJi said, “it would still be a manor by reputation, for this purpose, which will satisfy the allegation; and it was not necessary to prove it a continuing manor for all purposes.” In Ricketts v. Salwey, 3 B. & Ad. 361, the declaration stated that the plaintiff was possessed of a messuage and land, and ought in respect of them to have a right of common. It appeared that the right of common was claimed by the plaintiff in respect of Ashford Hall, and the land usually held with it, on which issue the plaintiff failed. It appeared, however, that he was possessed of land within the parish, in respect of which he was entitled to a right of common, but there was no messuage upon this land ; and it was held that this evidence was sufficient. Upon these authorities we think that the custom was proved by competent evidence. The custom is alleged in the plea to be an immemorial custom, — 409 — and the evidence in this case shows that there had been an usage to procure the sea-weed for more than twenty years. This evidence is sufficient. A regular usage for twenty years, unexplained and uncontradicted, is sufficient to warrant a jury in finding the existence of an immemorial custom. Rex v. Joliffe, 2 Barn. & Cress. 54, Gray v. Bond, 2 Brod. & Bing. 667. The Court ruled that it was not necessary for the defendant to prove that the custom extended over the whole close. The plea states a custom to haul the sea-weed “ upon said close,” and the plaintiffs say the instruction was wrong. In the case of Richards v. Peake, 2 Barn. & Cress. 918, to an action of trespass qu,. cl. fr. the defendant pleaded a right of common of pasture in a down of which the close, &c., in the declaration mentioned was parcel, and justifying the trespass. Replication that the close in which, &c., in the declaration mentioned, was a certain close called Burgey Cleave Garden, &e. Abbott, C. J., said that the words “ the close in which, &c., in the declaration mentioned,” confine that allegation to the spot where the trespass was committed. In Bassett v. Mitchell, 3 B. & Ad. 99, to an action of trespass qu. cl.fr., the plea was that the close in which, &c., was part of an allotment of six acres ; which was denied by the replication. It appeared that the close set out was not all within the allotment, but that the part in which the actual trespass occurred, was within it; and it was held that the justification was made out. Patteson, J., said, “ the words ‘ in- the said close ’ do not mean every part of the close.” Tapley v. Wainwright, 5 B. & Ad. 395; S. P., 1 Archb. N. P. 339. We think the ruling was correct. The Court also ruled that a customary right to do any thing on the land of another, was a right adverse to the rights of the owner of the soil. This, however, was said only as introductory to the rest of the sentence — “ and must have been acquiesced in by him.” The authorities are that a custom originates in permission. Bac. Abr. Customs. (A.) Still it is in its nature adverse. It is a right which the owner of the soil permits to be exercised upon his land; and he must have acquiesced in it in order to — 410 — give it validity; because the custom must not have been the subject of contention and dispute. If it be not an adverse right, why need its exercise have been acquiesced in ? We do not see that it can be otherwise regarded. The defendant here first set up the plea of custom. If he failed in proving that, then he relied on proof of a license. Surely the evidence stated in the case, of his repeatedly going on the land, and doing acts there with the knowledge of, and without any objection from the plaintiffs, is competent to be considered and weighed by the jury, as tending to show a license. He might say, “ all the inhabitants of Hampton did these acts; bat if I cannot prove that they did so, and if I fail in showing a custom, at least when I did them myself the plaintiffs assented to them, and so I had a license.” The questions of custom and of license were distinct from each other. One of them might have been tried without the other; and if the question of license only had been tried, there would have been no pretence of objection to Lamprey. By applying Lamprey’s testimony to a point upon which it was not offered, and which it proves only incidentally, the plaintiffs raise their objection. Whether they can do this is extremely doubtful. The general rule is well understood. If a customary right be claimed for the inhabitants of a place, an inhabitant cannot testify in support of the custom, for the verdict would be evidence in his favor. Jacobson v. Fountain, 2 Johns. 170; Gould v. James, 6 Cowen, 369; Bent v. Baker, 3 Term Rep. 33. But in Bent v. Baker, Buller and Grose, Justices, both say that if a witness be competent to answer any question, he ought not to be rejected generally. In the case of Smith v. Carrington, 4 Cranch, 62, it was held by Marshall, C. J., that a witness who was interested to diminish certain admitted items in the plaintiffs’ account was still a competent witness to disprove other items. However, in Cage v. Stewart, 4 Johns. 293, it was held that a witness, interested in one of the articles for which the suit was brought, could not testify as to another article in which he was not interested. But this objection is obviated by the plaintiffs’ own evidence. — 411 — Their witnesses describe the places where the trespasses were committed, and Lamprey, the defendant’s witness, agrees with them. In the case of Wiggin v. Damrell, 4 N. H. Rep. 69, the defendant contended that a certain deposition was improperly used by the plaintiff. But the Court held, that, under the circumstances, they would not inquire whether the deposition was properly admitted or not, as it appeared that the fact which the deposition was intended to prove had been virtually admitted by the defendant. In the present case, the fact which Lamprey testified to, had already been proved by the plaintiffs’ witnesses, and we do not understand that the places where the alleged trespasses were committed were matters in dispute. The admission of Lamprey, then, affords no ground for setting aside the verdict. No practice exists in this State, to our knowledge, of setting aside a verdict in part. Moreover, the case has been tried throughout without reference to any former trial. The plaintiffs must go on the ground that judgment should be rendered on the verdict returned in the former trial, which they say has not been set aside. But this motion should have been made before the present trial had been gone into ; and if the plaintiffs should lie by and wait the result of the trial, allowing the defendant, without any notice, to incur the expense of the proceeding, — then to permit them to take advantage of this motion, supposing their position to be tenable, would be extremely unjust. We are of opinion, therefore, that the plaintiffs’ motion should be overruled, and that there should be . Judgment on the verdict.