the access of the sun's rays to his windows, free from any obstruction by the occupier of the adjoining land. The element of light, like that of water, is capable to a certain extent of appropriation by mere occupancy-for a man on his own land has a right to all the light which will come to him; and may erect a house (even at the boundary line of his property, and so as to overlook his neighbour) with as many windows as he pleases (b). And by force of a grant, or prescription, he may become entitled to maintain these windows in freedom from all obstruction (c). But on the other hand, in the absence of any grant, and before the period has elapsed which suffices for the establishment of a prescriptive claim, it is competent to the owner of the adjoining land to construct a wall or house on it, so near to the former one, as to intercept the light, which it would otherwise have received (d); for his right to erect edifices on any part of his own soil, is as clear as that of the first builder.

V. Franchises are a fifth species. [Franchise and liberty are used as synonymous terms; and their definition is a royal privilege, or branch of the crown's prerogative, subsisting in the hands of the subject (e). Being therefore derived from the crown, they must arise from royal grant; or in some cases may be held by prescription, which, as has been frequently said, presupposes a grant (f). The kinds of them are various and almost infinite; we will here mention some of the principal, premising only that they may be vested in either natural persons or bodies politic; in one man or in many; but the same identical franchise

(b) Per Bayley and Holroyd, Js., Cross v. Lewis, 2 Barn. & Cress. 689, 691; per Littledale, J., Moore v. Rawson, 3 Barn. & Cress. 340.

(c) Blanchard v. Bridges, 4 Ad. & El. 195; Swansborough v. Coventry, 9 Bing. 305. As to the title by prescription in the case of lights, and

the length of time which suffices for its establishment, vide post, p. 692.

(d) Blanchard v. Bridges, ubi sup. Per Littledale, J., Moore v. Rawson, ubi sup.

(e) Finch, L. 164.
(f) Co. Litt. 114 a.

[that has before been granted to one, cannot be bestowed on another, for that would prejudice a former grant (g).

To be a county palatine is a franchise vested in a number of persons (h). It is likewise a franchise for a number of persons to be incorporated, and subsist as a body politic, with a power to maintain perpetual succession, and do other corporate acts; and each individual member of such corporation is also said to have a franchise or freedom.] So there may be a franchise [to have a bailiwick or liberty exempt from the sheriff of the county, wherein the grantee only and his officers are to execute all process (i)] and other franchises there are which are frequently annexed to manors (k); as for a man to hold a court leet for the administration of criminal justice, in certain cases, among the tenants and residents of his manor (1). So there may be a franchise [to have waifs, wrecks, estrays, treasuretrove, royal fish, and forfeitures (m);] the nature of which will more particularly appear when we come to speak of the crown's prerogative (n): to have a fair, market, ferry, or the like, with the right of taking toll there (o): or [to have forest, chase, park, warren, or fishery.] Among these there are many which belong, in point of arrangement, to other parts of the present treatise; but to others more particular notice is due in this place.

1. And, first, as to fairs, markets, and ferries. A man may have a right to hold a fair or market, or to keep a

(g) 2 Roll. Ab. 191; Keilw. 196. As to the forfeiture of franchise, vide post, p. 691.

(h) As to counties palatine, vide sup. p. 133.

(i) See 13 & 14 Vict. c. 105, for facilitating the union of liberties with the counties in which they are situate; and 21 Vict. c. 22, abolishing certain franchise prisons.

(k) As to manors, vide sup. p.

219.

(1) As to a court leet, vide post, bk. vI. c. XIV.

(m) Blackstone (vol. ii. p. 37) adds "deodands" to these instances of franchises; but by 9 & 10 Vict. c. 62, deodands are abolished. See as to their nature, post, bk. IV. pt. 1.

C. VII.

(n) Vide post, bk. Iv. pt. 1. c. vi. (0) As to the tolls of fairs or markets belonging to the crown, see 15 & 16 Vict. c. 62, s. 6.

boat for the ferrying of passengers; and this either by royal grant or by prescription (p). But (unless under an act of parliament) no other title than these will suffice; for no fair, market or ferry can be lawfully set up without licence from the crown (q). On the other hand, a man may, under such titles, lawfully claim to be lord of a fair or market, though he be not the owner of the soil on which it is held (r): or to be the proprietor of a ferry, though he be not the owner either of the water over which it is exercised (s), or of the soil on either side of the river (t); but he must possess over the soil such rights, at least, as will authorize him to embark and disembark his passengers thereon (u). The right to take toll, also, from the customers, is usually-though in the case of a fair or market not necessarily (x)—a part of the privilege; and the tolls of a fair or market are due either in respect of goods sold there (that is, from the seller, not the buyer), or for stallage or pickage, or the like, in respect of stalls or poles fixed in the soil (y). But the right of the crown to authorize the collection of tolls is viewed by the law with a salutary jealousy; so that no burthen of that kind can be imposed on the public, unless it have (in the language

(p) 2 Inst. 220; Trotter v. Harris, 2 Y. & J. 285. Fairs and markets

are,

however, often regulated by act of parliament; and see 10 & 11 Vict. c. 14 (called "The Markets and Fairs Clauses Act, 1847"), consolidating into one statute certain provisions usually inserted in such acts of regulation. As to days on which fairs and markets are not to be held, see 27 Hen. 6, c. 5; 13 & 14 Vict. c. 23. As to Greenwich market, see 12 & 13 Vict. c. 28. As to a metropolitan market in lieu of Smithfield, 14 & 15 Vict. c. 61.

(q) 2 Inst. 220; R. v. Marsden, 3 Burr. 1812; Willes, 512, (n.); Com.

Dig. Piscary, B.; Hale, de Jure Maris, part i. c. 2.

(r) Bac. Ab. Fairs, &c. D. n. (a); Mayor of Northampton v. Ward, 2 Stra. 1238; 1 Wils. 107; but see per Littledale, J., R. v. Starkey, 7 Ad. & E. 106.

(s) Com. Dig. in tit. Piscary, B. (t) Peter v. Kendal, 6 B. & C. 703.

(u) Ibid.

(x) Heddy v. Wheelhouse, Cro. Eliz. 558, 592; Lord Egremont v. Saul, 6 Ad. & El. 924; R. v. Starkey, 7 Ad. & El. 106.

(y) 2 Inst. 219.

of the books) a reasonable commencement (z); that is, unless it be founded on an adequate consideration as between the public and the grantee: which consideration, in the case of a fair or market, is the duty incumbent on the grantee to provide ground for the purpose, and to regulate the proceedings; in that of a ferry, to keep up a boat for the passage over a stream not otherwise fordable (a). And it is also essential that the burthen be reasonable in its amount (b); for where the tolls granted are outrageous, the franchise is illegal and void (c). It is however to be remarked, that, when any of the privileges in question can be shown to exist, the party entitled to it has a right of action, not only against those who refuse or evade payment of toll where it is due, but against those also who disturb his franchise by setting up a new fair, market or ferry, so near to his as to diminish his custom (d); while on the other hand he is himself liable to be criminally indicted, if by his wilful act, or even by his neglect of duty, the subjects of the realm are obstructed in its lawful use (e).

2. As to the franchises of forest, chase, park, warren, and fishery.

A forest (in the legal sense) is the right of keeping, for the purpose of venary and hunting, the wild beasts and fowls of forest, chase, park, and warren, (which means in effect all animals pursued in field sports,) in a certain territory or precinct of woody ground or pasture set apart for the purpose; with laws and officers of its own, established

(x) 2 Bl. Com. 37; Mayor of Nottingham v. Lambert, Willes, 116. (a) Heddy v. Wheelhouse, ubi sup.

(b) Ibid.; 2 Inst. 219.

(c) Stat. 1 Westm. c. 31; 2 Inst. 219; Cro. Eliz. ubi sup. ; 2 Bl. Com. 37; Willes, ubi sup.

(d) 2 Roll. Ab. 140; Com. Dig.

VOL. I.

Action on the Case for a Nuisance,
(A); Blisset v. Hart, Willes, 503;
De Rutzen v. Lloyd, 5 Ad. & E.
456; Bridgland v. Shapter, 5 Mee.
& W. 375; Pim v. Curell, 6 Mee. &
W. 234.

(e) Willes, 512, (n.); Payne v.
Partridge, 1 Show. 231.

for protection of the game (f). It is a principle of our law, that will be noticed more fully in its proper place, that in general no man can make title to animals feræ naturæ— which, while they remain wild, are accounted nullius in bonis, or (what amounts to the same thing) as the common property of mankind. From this it results, that, though a man may take or kill on his own lands any particular animals that may happen to be found there (g),—subject to the restrictions imposed by the Game Acts, of which we shall speak hereafter (h), and so that he invade not any exclusive franchise of sporting, which another person may possess over the same territory) (i),-yet he is not at liberty to confine beasts of venary in a wild state within a particular precinct, for the mere purpose of diversion (even though on his own soil); for this is in some sense to appropriate what belongs equally to others, and is in the nature of an unlawful monopoly (k). Such at least was the principle of the antient law, which appears in this

(f) Co. Litt. 233 a; Manwood, Forest Laws, 41, 52, edit. 1665.

(g) Case of Monopolies, 11 Rep. 87 b. Blackstone (vol. ii. p. 415) supposed that the Norman race of kings introduced the doctrine, that the right of pursuing and taking beasts of venary belongs in every case to the sovereign only, or those by him authorized; and he considered this as a still existing doctrine of our law, and held that (however common the contrary supposition might be) no private person was entitled at common law to kill game, unless he could show a right of freewarren. But Blackstone's views on this subject have been with reason controverted; and the true rule seems always to have been that which is stated by the learned commentator himself, as allowed among

the Saxons, viz., that in general every man has a right to hunt, &c. on his own grounds (see Wilk. Leg. Angl. Sax. LL. Can. c. 77)—a right, however, that is modified as mentioned in the text. See Chit. Game Laws, 3; 11 Rep. 87 b; Ld. Raym. 251; Salk. 555.

(h) Vide post, bk. 11. pt. 11. c. II. (i) Lord Dacre v. Tebb, 2 Bl. Rep. 1151.

(k) None can make a park, chase, or warren without the king's licence: for that is, quodammodo, to appropriate those creatures which are feræ naturæ, and nullius in bonis, and to restrain them of their natural liberty; Case of Monopolies, 11 Rep. 87 b; and see ibid. 86 a; 2 Rol. Ab. 33, 812; 2 Inst. 199; Com. Dig. Chase, (D).