case peer against lucy and other a man can prescribe to have a necessary  easement in the land of another person for himself and his servant to catch  fish in his several fishery S c lily Ent trespass for the break and enter the  close of the plaintiff and tread down of his grass and fish in his several  fishery the defendant as to the force and arm plead not guilty and as to the  break and enter of the close and tread the grass they say that John earl of  Warwick modern er p in the three year of Edward the six be seize in fee of the  manor of Hampton whereof one acre cover with water be parcel and likewise  contiguous to the say close that the say earl and all those who estate he have  in the same manor time out of mind be accustom to have a necessary easement  for themselves and servant to catch fish in the say water at several time and  for that purpose to enter into the say close and spread net c that afterward  the say earl grant this manor to king Edward the six in fee after who death  both the say manor and close descend to queen mary as his sister and heir who  marry Philip king of Spain and so they become seize thereof c who by letter  patent grant the say manor to Thomas Lucy in fee with all way emolument  commodity and hereditament thereunto belong c in as full and ample manner as  any person before have enjoy the same and so derive a title to himself from  the say Thomas Lucy and justify in his own right and the modern other  defendant as his servant and by his command for enter into the say close and  spread of his net and cast they into the water for the necessary catch of fish  c the plaintiff by protestation reply that the defendant be not seize in fee  of that one acre cover with water and that the easement which he have plead be  not a necessary easement for catch of fish and then demurrer general to the  plea the defendant join in demurrer those who argue for the plaintiff insist  that this plea be not good either as to the matter or form of plead first as  to the matter for probable this prescription may have be good if the defendant  have derive to himself a title from the earl of Warwick but he be seize of the  manor and the king of the close and have grant the manor to the king the  easement by this mean be extinguish because it be inconsistent for one person  to have both a general and particular property in the same thing at the same  time many case be cite to prove that this easement be destroy by unity of  possession as in trespass where the defendant justify for a way belong to his  house in d to go to a wood in c the plaintiff reply that one n in the time of  king Richard the first c be seize both of the land through which the defendant  claim the way and likewise of the wood and though in Henry pl it be a question  whether this way be extinguish by unity of possession yet brook in abridge of  the case bro Abr chemin pl a seem to be clear of opinion that it be extinguish  so unity of possession of a mill and watercourse to which a way be appendant  and of that land over which the way be will extinguish the way itself bro Abr  nuisance pl roll Abr b so in the case of Surre v piggot Bulst Poph latch bendl  side S p hob S p c it be agree that all private way be extinguish by unity of  possession but when the thing be of necessity and essential to the grant in  such case if there be once a unity of possession it shall revive again as if  there be a watercourse to a house through the ground of another person that be  of necessity and shall not be extinguish by unity of possession this be a  easement in the nature of a way and if a way can be extinguish why not this  especial when it be not plead that it be necessary for catch of fish it be  only say it be a necessary easement c which be a very insignificant expression  it be neither a grammar word or a word of art and skill it shall modern have  be that they to become used to have quandan way or a certain privilegi sive  freedom to go into c and though it be a insensible word it can be reject as  surplusage upon the statute of demurrer because it be the gist of the action  but if that sentence shall be reject then it be use to be et to become used  enclosed space to go into which may be with leave neither be it revive by the  grant of all way emolument and hereditament c to Thomas Lucy ancestor of the  defendant for the only word which may give any colour to such a opinion be the  word hereditament but that must be intend only of such as be in be at the time  of the grant make to prove that it be not revive by such general word the case  of marshal v hunter Yelv Brownl cro James cro Elizabeth contra d be cite as a  authority modern er p full to the purpose which be thus videlicet a copyholder  for life have common c purchase the fee of his copyhold which be grant to he  by the lord cum appurtenance and it be resolve that by the unity of possession  his common be destroy and that it be not revive by these general word cunt  appurtenance the second point be not much insist on which be that the plea be  insufficient as to the manner of plead for it be say that the earl of Warwick  in the three year of Edward the six be seize in fee of the manor of Hampton c  and of one acre of ground parcel thereof cover with water and then prescribe  that he and all those c use to have a necessary easement but do not say  tanquam ad manor pillage spectan and therefore have not claim it as a easement  belong to the manor those who argue on the other side agree the case before  cite to be law videlicet where any matter of interest or charge be claim upon  man estate as rend commons c such be always extinguish by unity of possession  and never revive but these case do not come up to the matter now in question  because there be a great difference between matter of charge and easement in  all case except only that of a way which be of necessity and this be the very  difference make in all our book such be all the case before mention on the  behalf of the plaintiff and such be the resolution in the case of Surre v  piggot where all the authority be quote videlicet it be a action on the case  for stop of a watercourse which use to run from one place to another and which  modern fill the pond of the plaintiff with water for the necessary water of  his cattle there the water be hold to be a necessary easement and though there  be a unity of possession yet for that reason judgement be give that the  watercourse be not extinct the defendant in like manner by plead have show  this to be a necessary easement and the plaintiff have confess as much by his  demurrer for they have no way of catch fish but as set forth in this plea  second but if this easement be once extinguish by unity of possession yet the  grant of the king and queen de to make new to Thomas Lucy revive it for it be  grant to he tam opportunity modus et form prout aliquan mask quaecunq antetunc  manor c to have which be relative word and give new life to this easement as  in trespass Bradshaw v Eyre cro Elizabeth see also Bac Abr a the defendant  plead that Bradshaw be seize of the place where c in fee and that Folijambe be  seize of a house and so prescribe to have common appurtenant in the place  where c and that Folijambe make a feoff of his house to Bradshaw who make a  lease thereof to the defendant with all commons thereunto appertain or occupy  or use with the say house and it be adjudge that by the unity of possession  the common be extinguish yet by both those word a good grant be make of a new  common so where a copyhold message escheat to the lord   a cro James contra  cro Elizabeth and hob b where the copyholder have common by prescription in  sixty acre of the demesne and the lord grant all commons to the say message  belong or let with the same it be adjudge that by these word the grantee have  a common in the say sixty acre though it be once destroy by unity of  possession as to the objection that the word necessary easement be  insignificant and neither word of art or skill that may receive this answer  videlicet the word easement be know in the law it be define in the term  thereof it be a genus to several species of liberty which one man may have in  the soil of another without claim any interest in the land itself it be use in  Gatewards case   see also yearbook Edward pl cro car a where it be hold to be  a good custom for a inhabitant of a certain parish to have a way over another  man ground either to church or to the market because it be a easement and no  profit it be use also by my Lord Hobart hob b who make a difference between  interest and profit c such as rend and commons c and easement such as light  air c the last of which though they may be destroy or modern extinguish for a  time by unity of possession for a man may do what he please with his own yet  if no alteration be make thereof when it be in one hand upon the divide it  again the interest and right to such easement revive my Lord dyer dyer a c use  this word where he tell we that modern er p lessee for life or year or tenant  at will or a inhabitant of a parish who be tenant at will can prescribe to a  common in their own name because of the meanness of their estate and capacity  but they may prescribe to be exempt from toll or to have a way to church over  another man ground because such be only easement it be a word also use in  plead in almost all the book of entry as in CokeRobin Ent d in Robinson win  Ent e in winch in vidian Vid Ent g in Herne Herne plead h and it be mention  also in Brownlow Brownl Rep can I curian the word easement be know in law but  here the thing itself be set forth videlicet to catch fish c and certain no  instance can be give of a prescription for such a liberty by such a word or  name therefore the defendant be direct to set the prescription right and try  the merit of the cause