Edwards v Jenkins: 1896

Application was made to register a customary right over land.
Held: The ‘locality rule’ applied. The inhabitants of the contiguous Surrey parishes of Beddington, Carshalton and Mitcham could not have a customary right of recreation over land in Beddington: ‘One parish, one custom.’ Kekewich J said: ‘The only question, therefore, is whether it is properly laid in ‘all the inhabitants for the time being of the said parish, and of the adjoining or contiguous parishes of Carshalton and Mitcham.’ It seems to me that though there is no authority exactly deciding that such an allegation is bad, all the cases so directly point that way that I ought to consider the point concluded by authority’.
rejected the attempt by the defendants to re-amend to delete the allegation that there had been usage by the inhabitants of the neighbouring parishes, saying: ‘But I cannot see how a number of parishes can, without specific evidence, be said to be situated in a particular district so that land in one of the parishes is land in a particular district. I take it that the judges have used the word ‘district’ as meaning some division of the county defined by and known to the law, as a parish is; and that I should be extending their meaning if I were to say that a custom of this kind could be claimed as regards several parishes.
Mr. Edwards is right, I think, in his criticism of the other cases cited by Mr. Warmington. I think they do go to this, that where a custom is asserted as regards the inhabitants of a particular parish, then, if the evidence goes to shew that the privilege has been exercised by the inhabitants of other parishes, the proof is inconsistent with the allegation, and the case fails on that ground. But it is to be observed that in all such cases, if the larger custom could have been set up, a custom, that is, for inhabitants of adjoining parishes, then leave to amend ought to have been applied for, and if applied for, would, I should say, have been granted, so as to admit of the larger custom being proved. It seems to follow that the reason why those cases failed was because the evidence was inconsistent with the allegation, and no allegation could be introduced by amendment so as to be sustainable in law. That brings me to the last point. Mr. Edwards has asked for leave to amend. I am extremely unwilling to refuse leave to amend in any case . . He now asks for an amendment by striking out the words referring to Carshalton and Mitcham, so as to claim a custom for Beddington only. It is clear to my mind that if the amendment were made the evidence adduced would shew that the custom affects not only the parish of Beddington, but the other parishes, and I should be in precisely the same position as the Master of the Rolls was in the case of Cox v. Schoolbred. . and should have to decide against the defendants, because they had proved a custom larger than they claimed’.


Kekewich J


[1896] 1 Ch 308


CitedFitch v Rawling 1795
A common was claimed at Steeple Bumpstead in Essex for ‘all kinds of lawful games, sports and pastimes . . at all seasonable times of the year.’ including cricket.
Held: Rights of common over land can include the right of local inhabitants to . .
CitedCox v Schoolbred CA 15-Nov-1878
Jessel MR rejected a claim to establish a local custom saying that the only two witnesses called for the plaintiff admitted that ‘people from the neighbouring places [apart from Pangbourne] had also been in the habit of playing upon and using . .
CitedBourke v Davis 1890
Kay J considered that a customary right over land might be confined to the inhabitants of a district. . .

Cited by:

CriticisedNew Windsor Corporation v Mellor CA 1975
The respondent had obtained registration of land, Bachelors’ Acre, a grassed area of land in New Windsor, now used as a car park in the register of town and village greens under the Act as a customary green. It had been used for archery in mediaeval . .
CitedOxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
CitedPaddico (267) Ltd v Kirklees Metropolitan Council and Others ChD 23-Jun-2011
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .
Lists of cited by and citing cases may be incomplete.


Updated: 17 May 2022; Ref: scu.242328