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nure the ground (48). 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 appurte- appurtenant, nant 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 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) (49), which the law

(c) 2 Inst. 86.

(d) Stiernh. de jure Sueonum, l. 2, c. 6.

(e) Cro. Car. 482. 1 Jon. 397.
(f) Co. Litt. 121, 122.

(48) Common appendant may, by (How v. Strode, 2 Wils. 274. Bensou usage, be limited to any certain num- v. Chester, 8 T. R. 398. 400. Cheesber of cattle; but where there is no man v. Hardham, 1 Barn. & Ald. 711. such usage, it is restrained to cattle Bennett v. Reeve, Willis, 231. Patrick levant and couchant upon the land to v. Lowre, 2 Brownl. 101. And see which the right of common is append- post, note (51). ant; and the number of cattle to be (49) When a man prescribes for so considered and allowed, shall be common for a certain number of cattle, ascertained by the number of cattle as a right appurtenant, it is not neceswhich the land is equal to maintain sary to shew that they were levant and during the winter. A claim of right couchant, for the number being ascerof common, without any limitation, is tained, no encroachment is possible. not recognized by our courts of law. (Richards v. Squibb, 1 Ld. Raym. 726).

esteems sufficient proof of a special grant or agreement for because of vici- this purpose. Common because of vicinage, or neighbournage,

hood, is where 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 (50). 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

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 or, in gross; winks at the trespass (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

(g) Co. Litt. 122.

But, a man who claims common ap- right.” As Mr. Wooddeson is fully
purtenant, not for a specified number borne out by the authority of the cases
of cattle, ought to plead that it is of Sachererill v. Porter, Cro. Car. 482.
for cattle levant and couchant; for, if Wyatt Wild's case, 8 Rep. 157. Ty-
he puts in others, he does a wrong, ringham's case, 4 Rep. 38. and Gawen
and may be punished as a trespasser. v. Stacie, 1 Rolle's Ab. 400; the pas-
(Hoskins v. Robins, 2 Saund. 326 a). sage in our author's text must be qua-
Common, whether appendant or ap- lified.
purtenant, for beasts levant and cou- (50) Common because of vicinage
chant, cannot be granted over; but can only be used by cattle levant and
common appurtenant, for a limited couchant upon the lands to which such
number of beasts, ma be granted permissive right of common is annexed.
over. (Spooner v. Day, Cro. Car. 433; (Sir Miles Corbet's case, 7 Rep. 66).
S. C. W. Jones, 375. Drury v. Kent, Common for cause of vicinage is not
Cro. Jac. 14).

common appendant; but, inasmuch as Mr. Wooddeson (in his 21st Vin. it ought to be by immemorial preLect.) says,

common appurtenant, scription, it is in this respect resembled like that in gross, may be either by to common appendant. (Tyringham's prescription, or express grant, and con- case, 4 Rep. 38). It seems, that comsequently may begin within time of mon because of vicinage can only legal memory; which is not the case subsist between two immediately adof common appendant; for that can- joining townships; and not where they not begin at this day, but is of common are separated, however slightly, by any

ed or without

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 usu- and either limitally are, limited as to number and time; but there are also

stint. commons without stint (51), 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 Lord of a manor the waste as he pleases, for tillage or wood ground, provid- way inclose

waste for tillage, ed he leaves common sufficient for such as are entitled provided he thereto. This inclosure, when justifiable, is called in law, common for “ approving:” an antient 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 (52); the lord for the public injury, and each commoner for his private damage (k).

2. 3. Common of piscary (53) is a liberty of fishing in 2. 3. Common

leave sufficient

those entitled.

(1) 20 Hen. III. C. 4. 29 Geo. II. c. 36. and 31 Geo. II. C. 41.

(i) 2 Inst. 474.
(k) 9 Rep. 113.

intermediate land. (Bromfield v. Kir. Saund. 346), where the technicalities ber, 11 Mod. 72).

necessary to be attended to in the (51) The man who prescribes for pleadings, when an action is brought common without stint, must also aver for such damage, are set forth. See that the cattle are fed on his own land, also the conclusion of note (2), to or are levant and couchant there; for, Potter v. North, (Ibid. 353, which case common sans nombre is only for beasts is also reported, and in some respects levant and couchant, so that even this more fully, in 1 Vent. 383–398; and, is a common certain. (1 Inst. 122 a. as to the first action, tried in the Court of 2 Inst. 85. Chicheley v. —, Hardr. Common Pleas, in Vaugh. 251–258). 118. Mellor v. Spateman, 1 Saund. (53) Mr. Wooddeson, (in his 21st 344; and see ante, note (48)). Vin. Lect. s. 5), doubts the propriety

(52) The leading authorities in sup- of including a piscary of any sort under port of this doctrine are collected in rights of common, as one species or note (2), to Mellor v. Spateman, (1 class thereof: he seems to think that

of piscary and another man's water: as common of turbary is a liberty of turbary.

digging turf upon another's ground (1) (51). There is also

(1) Co. Litt. 122.


all fisheries, of whatever description, rights; and the question will not be ought rather to be referred to the head altered, though these two rights may of franchises. Our author's reasons for happen to concur in one and the same pursuing a different course, will be person. If it were otherwise, the obfound in the 7th section of this chapter; jection to approvement would be just if lie has erred at all, it is not in sup- the same, where common of piscary posing that common of piscary may or common of estovers came in question. exist upon the same footing as other Yet it would be absurd to say, a lord rights of common, but in making a cannot inclose against common of pasdistinction between common of fishery, ture, because his tenants, or some other and free fishery: as to which, see post, persons, have common of piscary, or note (71).

common of estovers in the same waste. (54) Common of turbary can only be If, indeed, their enjoyment of either of appendant, or appurtenant, to a house, these rights was affected by such inclonot to lands: (Tyringham's case, 4 Rep. sure, they might certainly maintain an 37): and the turf cut for fuel must be action; and so may a commoner whose burned in the commoner's house; enjoyment of a common of turbary is in(Dean and Chapter of Ely v. Warren, terrupted. (Fawcett v. Strickland, Wil3 Atk. 189); not sold. (Valentine v. les, 60). Some authorities seem Penny, Noy, 145). So, it seems, an intimate, that, as a general rule, the alleged custom for the tenants of a owner of the soil cannot approve against manor to be entitled to cut and carry a right of common of turbary. Such a away from the wastes therein an in- rule, however, is at all events not unidefinite quantity of turf, covered with versal; and the power of approvement grass, fit for the pasture of cattle, for may reasonably exist. Common of the purpose of making and repairing turbary must be enjoyed in respect of grass plots in their gardens, or other antient messuages. Many of those improvements and repairs of their cus- antient messuages may be destroyed, tomary tenements, cannot be sup- and others not substituted, and it would ported. (Wilson v. Willes, 7 East, 127). be unreasonable that the whole of a

The statute of Merton (20 Hen. III. waste should remain uninclosed, so long c. 4, concerning approvements of com- as a single commoner in respect of an mons), does not extend to either com. antient messuage should have a right mons of turbary, of piscary, of estovers, to cut turf upon the common. The or the like. (2 Inst. 87. Fawcett v. question, whether a sufficiency of comStrickland, Comyns, 579). But, where mon of turbary, or of pasture, is left there is common of pasture and com- for the commoners, is a question to be mon of turbary in the same waste, the left to the decision of a jury. (Arlett common of turbary will not hinder the v. Ellis, 7 Barn. & Cress. 371). The lord from inclosing against the common extent to which either the lord of a of pasture, for they are two distinct manor, or the commoners, may exercise


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 (55) or estouviers, that is, neces- 4. Common of saries, (from estoffer, to furnish), is a liberty of taking ne

[ 35 ]




their respective privileges above men- intended, if the altered state of the pretioned, may frequently, indeed com- mises would create a consumption of monly, depend upon custom. (Bate- estovers greater than that contemplated son v. Green, 5 T. R. 416, and cases in when the grant was made. (Luttrel's the notes thereto).

case, 4 Rep. 87). (55) The liberty which every tenant If a right of common of estovers of for life, or years, has, of common right, wood be granted, to be taken in a certo take necessary estovers in the lands tain wood, the owner of which cuts which he holds for such estate, seems down some of the wood, the grantee to be confounded, in most of the text cannot take the wood so cut; even if books, with right of common of esto- the whole be cut down, he has no revers. Yet they appear to be essentially medy but an action of covenantor on the different. The privilege of the tenant case. (Basset v. Maynard, Cro. Eliz. for life or years is an exclusive privi- 820. Pomfret v. Ricroft, 1 Saund. 322. lege, not a commonable right. Right Dowglass v. Kendal, Cro. Jac. 256; S. of common of estovers seems properly C. Yelv. 187; which last case illustrates to mean, a right appendant or appurte- the distinction between an exclusive right nant to a messuage or tenement, to be to the wood growing on certain land, exercised in lands not occupied by the and a right of common of estovers only). holder of the tenement. Such a right It is true, that a single copyholder, or may either be prescriptive, or it may other tenant, and that one only, may arise from modern grant. (Countess of be entitled to right of common of pasArundel v. Sleere, Cro. Jac. 25). And ture, or estovers, or other profit in though the grant be made to an in- the land of the lord of the manor; but dividual, for the repairs of his house, then, the lord at least must participate the right is not a personal one, but ap- in the right; if the tenant enjoyed the purtenant to the house. (Dean and right solely, severally and exclusively, Chapter of Windsor's case, 5 Rep. 25. it would be difficult, without a violent Sir Henry Nevill's case, Plowd. 381). strain of language, to discover in such Such a grant is not destroyed by any a right any commonable qualities. alteration of the house to which the (Foiston and Cracherode's case, 4 Rep. estovers are appurtenant, but it may be 32. North v. Coe, Vaugh. 256). restricted within the limits originally

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