appendant, particular tenants. This kind of common is either appendant, appurtenant, because of vicinage, or in gross (b). *Common appendant is a right belonging to the owners. [33] or occupiers of arable land (49), to put commonable beasts upon the lord's waste, and upon the lands of other persons within the same manor. Commonable beasts are either beasts of the plough, or such as manure the ground (50). This is a matter of most universal right: and it was originally permitted (c), not only for the encouragement of agriculture, but for the necessity of the thing. For, when lords of manors granted out parcels of land to tenants, for services either done or to be done, these tenants could not plough or manure the land without beasts; these beasts could not be sustained without pasture: and pasture could not be had but in the lords' wastes, and on the uninclosed fallow grounds of themselves and the other tenants. The law therefore annexed this right of common, as inseparably incident to the grant of the lands; and this was the original of common appendant: which obtains in Sweden, and the other northern kingdoms, much in the same manner as in England (d). Common appurtenant ariseth from no connexion of tenure, nor from any absolute necessity but may be annexed to lands in other lordships (e), or extend to other beasts, besides such as are generally commonable; as hogs, goats, or the like, which neither plough appurtenant, (b) Co. Litt. 122. (49) See ante, the second note to p. 19, that common of pasture may be appendant to a messuage or cottage. And see also post, note to p. 34. The enjoyment of right of common of pasture has received some beneficial regulations, by stat. 13 Geo. III. c. 81, ss. 17-21; and by the statute of 2 & 3 Gul. IV. c. 71, it is enacted, that claims to right of common shall be absolute and indefeasible after sixty years' enjoyment. (50) Common of pasture appendant may, by usage, be limited to any certain number of cattle; but where there is no such usage, it is restrained (d) Stiernh. de jure Sueonum, 1. 2, c. 6. (e) Cro. Car. 482; 1 Jon. 397. to cattle levant and couchant upon the And see nage, nor manure the ground. This not arising from any natural propriety or necessity, like common appendant, is therefore not of general right; but can only be claimed by immemorial usage and prescription (ƒ) (51), which the law esteems sufficient proof of a special grant or agreement for this purpose. Common because of vicinage, or neighbourhood, is because of viciwhere the inhabitants of two townships, which lie contiguous to each other, have usually intercommoned with one another; the beasts of the one straying mutually into the other's fields, without any molestation from either (52). This is indeed only a permissive right, intended to excuse what in strictness is a trespass in both, and to prevent a multiplicity of suits: and therefore either township may inclose and bar out the other, though they have intercommon(f) Co. Litt. 121, 122. (51) Or by special grant, which might be good, even before the late act, though made within time of legal memory. (Cowlam v. Slack, 15 East, 115, 116; Sacheverill v. Porter, W. Jones, 397; see the last note but one as to the present law.) When a man prescribes for common for a certain number of cattle, as a right appurtenant, it is not necessary to show that they were levant and couchant, for the number being ascertained, no encroachment is possible. (Richards v. Squibb, 1 Ld. Raym. 726.) But, a man who claims common appurtenant, not for a specified number of cattle, ought to plead that it is for cattle levant and couchant; for, if he puts in others he does a wrong, and may be punished as a trespasser. (Hoskins v. Robins, 2 Saund. 326 a.) Common, whether appendant or appurtenant, for beasts levant and couchant, cannot be granted over; but common appurtenant, for a limited number of beasts, may be granted over. (Spooner v. Day, Cro. Car. 433; S. C. W. Jones, 375; Drury v. Kent, Cro. Jac. 14. Bunn v. Channen, 5 Taunt. 244.) prescription, or express grant, and (52) Common because of vicinage or, in gross; ed time out of mind. Neither hath any person of one town [*34] a right to put his beasts originally *into the other's common: but if they escape, and stray thither of themselves, the law winks at the tresspass (g). Common in gross, or at large, is such as is neither appendant nor appurtenant to land, but is annexed to a man's person; being granted to him and his heirs by deed; or it may be claimed by prescriptive right, as by a parson of a church, or the like corporation sole. This is a separate inheritance, entirely distinct from any landed property, and may be vested in one who has not a foot of ground in the manor. and either limit ed or without stint. Lord of a manor may inclose provided he common for All these species of pasturable common may be, and usually are, limited as to number and time; but there are also commons without stint (53), and which last all the year. By the statute of Merton, however, and other subsequent statutes (h), the lord of a manor may inclose so much of waste for tillage, the waste as he pleases, for tillage or wood ground, proleave sufficient vided he leaves common sufficient for such as are entitled thereto. This inclosure, when justifiable, is called in law, 'approving" an ancient expression signifying the same as "improving " (i). The lord hath the sole interest in the soil; but the interest of the lord and commoner in the common, are looked upon in law as mutual. They may both bring actions for damage done, either against strangers, or each other (54); the lord for the public injury, and each commoner for his private damage (k) (55). those entitled. 66 (g) Co. Litt. 122. (h) 20 Hen. III. c. 4; 29 Geo. II. c. 36., and 31 Geo. II. c. 41. (i) 2 Inst. 474. (k) 9 Rep. 113; [15 East, 161.] (53) The man who prescribes for common without stint, must also aver that the cattle are fed on his own land, or are levant and couchant there; for, common sans nombre is only for beasts levant and couchant, so that even this is a common certain. (1 Inst. 122 a. 2 Inst. 85. Chicheley v. Hardr. 118. Mellor v. Spateman, 1 Saund. 344; and see, ante, note (50); as also Vol. III. pp. 238, 239.) (54) The leading authorities in support of this doctrine are collected in note (2) to Mellor v. Spateman, (1 Saund. 346,) where the technicalities necessary to be attended to in the pleadings, when an action is brought for such damage, are set forth. See also the conclusion of note (2) to Potter v. North (Ibid. 353, which case is also reported, and in some respects more fully, in 1 Vent. 383398; and, as to the first action, tried in the Court of Common Pleas, in Vaugh. 251-258). (55) See Vol. III. p. 237, and the note thereto. of piscary and 2. 3. Common of piscary (56) is a liberty of fishing in 2. 3. Common another man's water: as common of turbary is a liberty of turbary. digging turf upon another's ground (1) (57). There is also (1) Co. Litt. 122. (56) Mr. Wooddeson, (in his 21st Vin. Lect. s. 5,) doubts the propriety of including a piscary of any sort under rights of common, as one species or class thereof: he seems to think that all fisheries, of whatever description, ought rather to be referred to the head of franchises. Our author's reasons for pursuing a different course, will be found in the 7th section of this chapter; if he has erred at all, it is not in supposing that common of piscary may exist upon the same footing as other rights of common, but in making a distinction between common of fishery, and free fishery as to which, see post, the note to p. 39. (57) Common of turbary can only be appendant, or appurtenant, to a house, not to lands: (Tyringham's case, 4 Rep. 37:) and the turf cut for fuel must be burned in the commoner's house; (Dean and Chapter of Ely v. Warren, 3 Atk. 189;) not sold. (Valentine v. Penny, Noy, 145; Lord Courtown v. Ward, 1 Sch. & Lef. 8.) So, it seems, an alleged custom for the tenants of a manor to be entitled to cut and carry away from the wastes therein an indefinite quantity of turf, covered with grass, fit for the pasture of cattle, for the purpose of making and repairing grass plots in their gardens, or other improvements and repairs of their customary tenements, cannot be supported. (Wilson v. Willes, 7 East, 127.) The statute of Merton (20 Hen. III. c. 4, concerning approvements of commons,) does not extend to either commons of turbary, of piscary, of estovers, or the like. (2 Inst. 87; Fawcet v. Strickland, Comyn, 579.) But, where there is common of pasture and common of turbary in the same waste, the common of turbary will not hinder the lord from inclosing against the common of pasture, for they are two distinct rights; and the question will not be altered, though these two rights may happen to concur in one and the same person. If it were otherwise, the objection to approvement would be just the same, where common of piscary or common of estovers came in question. Yet it would be absurd to say, a lord cannot inclose against common of pasture, because his tenants, or some other persons, have common of piscary, or common of estovers in the same waste. If, indeed, their enjoyment of either of these rights was affected by such inclosure, they might certainly maintain an action; and so may a commoner whose enjoyment of a common of turbary is interrupted. (Fawcett v. Strickland, Willes, 60.) Some authorities seem to intimate, that, as a general rule, the owner of the soil in which there is a right of common of turbary, cannot approve. Such a rule, however, is at all events not universal; and the power of approvement may reasonably exist, without derogation from the fair enjoyment of the rights of common. Common of turbary must be enjoyed in respect of ancient messuages. Many of those ancient messuages may be destroyed, and others not substituted, and it would be unreasonable that the whole of a waste should remain uninclosed, so long as a single commoner in respect of an ancient messuage should have a right to cut turf upon the common. The question, whether a sufficiency of common of turbary, or 4. Common of estovers. [ *35 ] a common of digging for coals, minerals, stones, and the like. All these bear a resemblance to common of pasture in many respects; though in one point they go much farther; common of pasture being only a right of feeding on the herbage and vesture of the soil, which renews annually; but common of turbary, and those aforementioned, are a right of carrying away the very soil itself. *4. Common of estovers (58) or estouviers, that is, necessaries, (from estoffer, to furnish,) is a liberty of taking necessary wood, for the use or furniture of a house or farm, from off another's estate. The Saxon word, bote, is used of pasture, is left for the commoners, is a question to be left to the decision of a jury. (Arlett v. Ellis, 7 Barn. & Cress. 371.) The extent to which either the lord of a manor, or the commoners, may exercise their respective privileges above mentioned, may frequently, indeed commonly, depend upon custom. (Bateson v. Green, 5 T. R. 416, and cases in the notes thereto. See Vol. III. p. 240.) (58) The liberty which every tenant for life, or years, has, of common right, to take necessary estovers in the lands which he holds for such estate, seems to be confounded, in most of the text books, with right of common of estovers. Yet they appear to be essentially different (and see Vol. III. p. 224). The privilege of the tenant for life or years is an exclusive privilege, not a commonable right. Right of common of estovers seems properly to mean, a right appendant or appurtenant to a messuage or tenement, to be exercised in lands not occupied by the holder of the tenement. Such a right may either be prescriptive, or it may arise from modern grant. (Countess of Arundel v. Steere, Cro. Jac. 25.) And though the grant be made to an individual, for the repairs of his house, the right is not a personal one, but appurtenant to the house. (Dean and Chapter of Windsor's case, 5 Rep. 25; Sir Henry Nevill's case, Plowd. 381.) Such a grant is not destroyed by any alteration of the house to which the estovers are appurtenant, but it may be restricted within the limits originally intended, if the altered state of the premises would create a consumption of estovers greater than that contemplated when the grant was made. (Luttrel's case, 4 Rep. 87.) If estovers of wood be granted, to be taken in a certain wood, the owner of which cuts down some of the wood, the grantee cannot take the wood so cut even if the whole be cut down, he has no remedy but an action of covenant or on the case: (Basset v. Maynard, Cro. Eliz. 820; Pomfret v. Ricroft, 1 Saund. 322; Dowglass v. Kendal, Cro. Jac. 256; S. C. Yelv. 187 which last cited case illustrates the distinction between an exclusive right to the wood growing on certain land, and a right of common of estovers only.) It is true, that a single copyholder, or other tenant, and that one only, may be entitled to right of common of pasture, or estovers, or other profit in the land of the lord of the manor; but then, the lord at least must participate in the right; if the tenant enjoyed the right solely, severally, and exclusively, it would be difficult, without a violent strain of language, to discover in such a right any commonable qualities. (Foiston and Cracherode's case, 4 Rep. 32; North v. Coe, Vaugh. 256.) |