The locus in quo lies above the ordinary high water mark of the sea, but below the extraordinary high water mark, and according to the principles of the common law, the title to it is in the plaintiff.
Sir Matthew Hale, in his treatise, de jure maris, chap. 6, speaking of the sea-shore, says, it is certain that that, which the sea overflows either at high spring tides or at extraordinary tides, comes not, as to this purpose, under the denomination of littus maris, and consequently the king’s title is not of that large extent, but only to land that is usually overflowed at ordinary tides.
The defendant alleges in his brief statement, that the inhabitants of the town of Wells, for more than twenty years, have claimed and exercised the right to haul and pile wood on the premises described in the plaintiff’s declaration, for the purposes of sale and shipping, and that the defendant is an inhabitant of that town, and hauled and piled his wood for that purpose ; that the said inhabitants for the same time, have had a custom to pile wood thereon for sale or shipping, at their free will and pleasure, and that said inhabitants and all other persons in the neighboring towns, have had a custom to do the same acts, and also to haul sea-weed or manure from the seashore adjacent thereto, and to pile the same and other things thereon, at their free will and pleasure, from time immemorial, as a common landing place.
The question presented is, whether the inhabitants of one or more towns, can claim the right or custom by a long use of more than twenty years, to deposit wood upon the plaintiff’s land.
In the case of Bethum v. Turner, 1 Greenl. 111, the usage of depositing lumber on the landing place, had continued for more than thirty-five years, but without any claim of title, except what might arise from the fact of occupation, and such usage was not considered sufficient to establish the right. In *140the present case, the defendant offered to prove, that the acts alleged to have been done in the brief statement, were accompanied by a claim of right, and with the knowledge of the owners. That case, although like this in many respects, cannot be considered as an authority directly in point.
In Gateward's case, 6 Coke’s Rep. 60, the defendant justified by a plea of a right of common for depasturing in the plaintiff’s close, for all the inhabitants of the village of Stixwold. And it was held that the custom was bad, and that there was a difference between an interest or profit to be taken or had in another’s soil, and an easement in another’s soil, that a custom for every inhabitant to have a way to church or market is good, for it is but an easement and no profit.
In Grimstead v. Marlow, 4 T. R. 717, the defendant justified under a custom, that every inhabitant, dwelling in any ancient messuage within the parish of Leatherhead, from time whereof, &c., hath used to have common of pasture in the common meadow. Lord Kenyon said, there may be a custom for an easement, as a right of way, in alieno solo, but for a profit a prendre, the party must prescribe in a que estate, and he cites Gateward’s case, and the case of Hardy v. Hollyday, a note of which was read by Buller, J.
Waters v. Lilly, 4 Pick. 145, was trespass for taking fish in the plaintiff’s close, and the defendant offered to prove, that the inhabitants of the vicinity had from time immemorial taken fish in the plaintiff’s pond, which was an enlargement of a natural stream by a dam. But it was decided that the custom proposed to be proved, is not one that could be sustained in law, for a custom to take any thing from another’s land, or for a profit a prendre, is not a lawful custom, and that such, if available at all, must be set up by prescription as belonging to some estate, and should be pleaded with a que estate.
In the case of Perley v. Langley, 7 N. H. 233, it is said, that it is not essential that such rights be prescribed for in a que estate, as holden in the language of 4 T. R. 717; for all rights that can be sustained by prescription, can be prescribed for in a man and his ancestors. But it is further said, that *141the 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 inheritance, and that there are no authorities that sustain the removal of the soil, or the taking of profits, from the soil of another, as a custom.
In Pearsall v. Post, 20 Wend. 111, and the same case, 22 Wend. 425, where the question under consideration was very fully examined, it was decided that the public have not the right, against the will of the owner, to use and occupy his soil, adjoining navigable waters, as a public landing and place of deposit of property, in its transit to and from vessels navigating such waters, although such user has been continued upwards of twenty years with the knowledge of the owner.
The principle to be extracted from the cases cited, is, that a custom for an interest or profit to be taken or had in another’s soil, is bad, and that such right must be alleged by prescription in a que estate. In the case of Perley v. Langley, it is said, that such claim may be sustained as a prescription by the individual through his ancestors, while the other cases maintain that there must be a dominant as well as a servient estate.
A custom is local, and is alleged in no person, but laid within some manor or other place. Coke Litt. 114, a.
There are many easements for. which a man may prescribe as having been exercised by him and his ancestors, or by a body politic and their predecessors, without profit, as a way through another’s land, a sink and the like. 3 Cruise, title 31, chap. 1, § 21.
The public as well as an individual, may acquire a right of way by an adverse use of the same, but in this State, a user of twenty years is required. Rowell v. Montville, 4 Greenl. 270; Estes v. Troy, 5 Greenl. 368.
But such right is not considered a profit in alieno solo. It is the mere right of passing and repassing; the title to the land, and all the profits to be derived from it, consistently *142with the right of way, remain in the owner of the soil. Stackpole v. Healy, 16 Mass. 33.
The case of Coolidge v. Learned, 8 Pick. 504, more fully sustains the right claimed by the defendant than any other, which has been examined. The facts of that case are not very fully stated, and the second plea appears to place the right upon the use of the landing for boards and timber in their transit to and from the river, more like a right of way, than that of piling and depositing timber upon the locus in quo. But the court recognize the right as one belonging to the public as well as the inhabitants of Watertown, and if it were a landing place, a place of deposit, the case would not be in harmony with that of Pearsall v. Post.
But is the right claimed by the defendant a profit in alieno solo ? The premises mentioned in the declaration, consist of two and half acres. The defendant offered to prove that the inhabitants of Wells and others, had been accustomed to deposit wood upon them at all times, that the quantity piled upon the land was nearly two thousand cords at a time, that vessels were loaded from the front of the lot, with the wood, that each individual piled on any part of the land he thought proper, if not previously occupied, that it had been customary to pile upon all parts of it, and that since 1819, it had at many times been nearly covered with piles of wood and sea-weed.
Such a use of another’s land, must be considered as a profit-able one, arising to those who exercise it. It is not a claim to carry any thing away from the soil, bdt the direct and continual appropriation of it for the purposes of gam. Indeed it appears to go beyond a mere incorporeal right, and in the full extent of its exercise to claim the entire dominion of the land, so as to deprive the owner of any benefit from it.
In the case Cortelyou v. Van Brundt, 2 Johns. 356, the defendant claimed a right by prescription to erect a temporary hut for the purposes of fishing, upon the plaintiff’s land. But it was denied, by Thompson, J. that prescription would in any case give a right to erect a building on another’s land. He says, it is a mark of title and of exclusive enjoyment, that *143title to land requires the higher evidence of corporeal seizin and inheritance, and that prescription applies only to incorporeal hereditaments.
The right of erecting a hut for temporary purposes, would not seem to be any more corporeal in its character, than the right of piling wood upon the land, to remain as long as might suit the pleasure of the owner.
But without deciding, that the claim set up by the defendant for himself and others, is an entire usurpation of the fee, and should be tried by the rules of limitation applicable to a claim of title, by a corporeal adverse seizin, it is enough for the decision of the case, to say, that the claim is certainly one of an interest or profit in the soil, and brings it within the rule that such a claim cannot be sustained by custom, and a
Default must be entered.