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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 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
(d) Stiernh. de jure Sueonum, l. 2,
(6) Co. Litt. 122.
(e) Cro. Car. 482 ; 1 Jon. 397.
(49) See ante, the second note to p. to cattle levant and con hant upon the 19, that common of pasture may be land to which the right of common is appendant to a messuage or cottage. appendant; and the number of cattle And see also post, note top.34. The en- to be so considered and allowed, shall joyment of right of common of pasture be ascertained by the number of cattle has received some beneficial regula- which the land is equal to maintain tions, by stat. 13 Geo. III. c. 81, ss. during the winter.
A claim of right 17—21 ; and by the statute of 2 & 3 of common, without any limitation, is Gul. IV. c. 71, it is enacted, that not recognized by our courts of law. claims to right of common shall be (How v. Strode, 2 Wils. 274 ; Benson absolute and indefeasible after sixty v. Chester, 8 T. R. 398, 400; Cheesyears' enjoyment.
man v. Hardham, 1 Barn. & Ald. 711; (50) Common of pasture appendant Bennett v. Reeve, Willis, 231 ; Patrick may, by usage, be limited to any cer- v. Lowre, 2 Brownl. 101. And see tain number of cattle; but where post, notes (51) and (53). there is no such usage, it is restrained
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 (f) (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 prescription, or express grant, and might be good, even before the late consequently may begin within time act, though made within time of legal of legal memory; which is not the memory. (Cowlam v. Slack, 15 East, case of common appendant ; for that 115, 116; Sacheverill v. Porter, W. cannot begin this day, but is of Jones, 397; see the last note but one common right." Mr. Wooddeson is as to the present law.) When a man fully borne out by the authority of the prescribes for common for a certain cases of Sacheverill v. Porter, Cro. number of cattle, as a right appur- Car. 482; Wyatt Wyld's case, 8 Rep. tenant, it is not necessary to show that 157; Tyringham's case, 4 Rep. 38; they were levant and couchant, for the and Gawen v. Stacie, 1 Rolle's Ab. number being ascertained, no 400. The passage in our author's text croachment is possible. (Richards v. required some qualification, even beSquibb, 1 Ld. Raym. 726.) But, a fore the late enactments. man who claims common appurtenant, (52) Common because of vicinage not for a specified number of cattle, can only be used by cattle levant and ought to plead that it is for cattle le. couchant upon the lands to which such vant and couchant ; for, if he puts in permissive right of common is anothers he does a wrong, and may be nexed. (Sir Miles Corbett's case, 7 punished as a trespasser. (Hoskins Rep. 66.) Common for cause of viv. Robins, 2 Saund. 326 a.) Common, cinage is not common appendant ; whether appendant or appurtenant, but, inasmuch as it ought to be by for beasts levant and couchant, cannot immemorial prescription, it is in this be granted over ; but common appur- respect resembled to common appendtenant, for a limited number of beasts, (Tyringham's case, 4 Rep. 38.) may be granted over. (Spooner v. Day, It seems, that common because of Cro. Car. 433; S. C. W. Jones, 375; vicinage can only subsist between two Drury v. Kent, Cro. Jac. 14. Bunn immediately adjoining townships ; and v. Channen, 5 Taunt. 244.)
not where they are separated, howMr. Wooddeson (in his 21st Vin. ever slightly, by any intermediate land. Lect.) says,
common appurtenant, (Bromfield v. Kirber, 11 Mod. 72.) like that in gross, may be either by
or, in gross;
and either limited or without stint.
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.
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 Lord of a manor statutes (h), the lord of a manor may inclose so much of may inclose waste for tillage, the waste as he pleases, for tillage or wood ground, proprovided he feave 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).
common for those entitled.
(9) Co. Litt. 122.
(h) 20 Hen. III. c. 4; 29 Geo. II. c. 36., and 31 Geo. II. c. 41.
(i) 2 Inst. 474.
(53) The man who prescribes for Saund. 346,) where the technicalities common without stint, must also aver necessary to be attended to in the that the cattle are fed on his own land, pleadings, when an action is brought or are levant and couchant there ; for, for such damage, are set forth. See common sans nombre is only for beasts also the conclusion of note (2) to levant and couchant, so that even this Potter v. North (Ibid. 353, which is a common certain. (1 Inst. 122 a. case is also reported, and in some re2 Inst. 85. Chicheley v.
spects more fully, in 1 Vent. 383— 118. Mellor v. Spateman, 1 Saund. 398; and, as to the first action, tried 344 ; and see, ante, note (50); as also in the Court of Common Pleas, in Vol. III. pp. 238, 239.)
Vaugh. 251–258). (54) The leading authorities in sup- (55) See Vol. III. p. 237, and the port of this doctrine are collected in note thereto. note (2) to Mellor v. Spateman, (1
2. 3. Common of piscary (56) is a liberty of fishing in 2. 3. Common
of piscary and another man's water: as common of turbary is a liberty of turbary. digging turf upon another's ground (I) (57). There is also
(1) Co. Litt. 122.
(56) Mr. Wooddeson, (in his 21st where there is common of pasture and Vin. Lect. s. 5,) doubts the propriety common of turbary in the same waste, of including a piscary of any sort the common of turbary will not hinder under rights of common, as one spe- the lord from inclosing against the cies or class thereof: he seems to common of pasture, for they are two think that all fisheries, of whatever distinct rights; and the question will description, ought rather to be re- not be altered, though these two rights ferred to the head of franchises. Our
may happen to concur in one and the author's reasons for pursuing a dif- same person. If it were otherwise, ferent course, will be found in the 7th the objection to approvement would section of this chapter; if he has be just the same, where common of erred at all, it is not in supposing that piscary or common of estovers came common of piscary may exist upon in question. Yet it would be absurd the same footing as other rights of to say, a lord cannot inclose against common, but in making a distinction common of pasture, because his between common of fishery, and free tenants, or some other persons, have fishery: as to which, see post, the common of piscary, or common of esnote to p. 39.
tovers in the same waste. If, indeed, (57) Common of turbary can only their enjoyment of either of these be appendant, or appurtenant, to a rights was affected by such inclosure, house, not to lands: (Tyringham's they might certainly maintain an accase, 4 Rep. 37:) and the turf cut for and so may a commoner whose fuel must be burned in the common- enjoyment of a common of turbary is er's house ; (Dean and Chapter of interrupted. (Fawcett v. Strickland, Ely v. Warren, 3 Atk. 189;) not sold. Willes, 60.) Some authorities seem (Valentine v. Penny, Noy, 145; Lord to intimate, that, as a general rule, Courtown v. Ward, 1 Sch. & Lef. 8.) the owner of the soil in which there So, it seems, an alleged custom for is a right of common of turbary, canthe tenants of a manor to be entitled not approve. Such a rule, however, to cut and carry away from the wastes is at all events not universal ; and the therein an indefinite quantity of turf, power of approvement may reasonably covered with grass, fit for the pasture exist, without derogation from the fair of cattle, for the purpose of making enjoyment of the rights of common. and repairing grass plots in their gar- Common of turbary must be enjoyed dens, or other improvements and re- in respect of ancient messuages. Many pairs of their customary tenements, of those ancient messuages may be cannot be supported. (Wilson v. destroyed, and others not substituted, Willes, 7 East, 127.)
and it would be unreasonable that the The statute of Merton (20 Hen. III. whole of a waste should remain uninc. 4, concerning approvements of com- closed, so long as a single commoner mons,) does not extend to either com- in respect of an ancient messuage mons of turbary, of piscary, of es- should have a right to cut turf upon tovers, or the like. (2 Inst. 87; Faw. the common. The question, whether cet v. Strickland, Comyn, 579.) But, a sufficiency of common of turbary, or
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
4. Common of estovers.
of pasture, is left for the commoners, by any alteration of the house to
(58) The liberty which every tenant of which cuts down some of the wood, for life, or years, has, of common right, the grantee cannot take the wood so to take necessary estovers in the lands cut: even if the whole be cut down, which he holds for such estate, seems he has no remedy but an action of to be confounded, in most of the text covenant or on the case : (Basset v. books, with right of common of esto- Maynard, Cro. Eliz. 820 ; Pomfret v.
Yet they appear to be essen- Ricroft, 1 Saund. 322; Dowglass v. tially different (and see Vol. III. p. Kendal, Cro. Jac. 256 ; S. C. Yelv. 224). The privilege of the tenant for 187 : which last cited case illustrates life or years is an exclusive privilege, the distinction between an exclusive not a commonable right. Right of right to the wood growing on certain common of estovers seems properly land, and a right of common of estoto mean, a right appendant or appur- vers only.) It is true, that a single tenant to a messuage or tenement, to copyholder, or other tenant, and that be exercised in lands not occupied by one only, may be entitled to right of the holder of the tenement. Such a common of pasture, or estovers, or right may either be prescriptive, or it other profit in the land of the lord of may arise from modern grant. (Count- the manor ; but then, the lord at least ess of Arundel v. Steere, Cro. Jac. must participate in the right; if the 25.) And though the grant be made tenantenjoyed the right solely, severalto an individual, for the repairs of his ly, and exclusively, it would be difficult, house, the right is not a personal one, without a violent strain of language, but appurtenant to the house. (Dean to discover in such a right any comand Chapter of Windsor's care, 5 Rep. monable qualities. (Foiston and 25 ; Sir Henry Nevill's case, Plowd.
4 Rep. 32; North 381.) Such a grant is not destroyed v. Coe, Vaugh. 256.)