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Limited as to number or time, or without stint.

by deed; or it may be claimed by prescriptive right, as by the 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,37 and which last all the year. By the stat

Cattle-gates (which are common in the north) seem to differ from common of pasture, for the owners of them have a joint possession and a several inheritance, and have an interest in the soil itself, and they are conveyed by lease and release. (1 T. R., 137.) An ejectment will lie for a beast-gate in Suffolk (signifying land and common for one beast) (2 Stra., 1084); and so for a cattle-gate. (2 T. R., 452; Rep. T., Hardw., 167; Sel., N. P., Ejectment, 3, n. 8; 6 Mee. & W., 541.)

If A., and all those whose estate he has in the manor of D., have had from time immemorial a fold-course, that is, common of pasture for any number of sheep not exceeding 300, in a certain field as appurtenant to the manor, he may grant over to another this foldcourse, and so make it in gross, because the common is for a certain number, and by the prescription the sheep are not to be levant and couchant on the manor. (1 Rol. Ab., 402, pl. 3; Cro. Car., 432; Sir W. Jones, 375; 2 Vent., 139.)

Common appendant and appurtenant are limited, as to the number of cattle, either to an express number, or by levancy and couchancy, sometimes termed common without number. (Willes, 232.) By common without number is not meant common for any number of beasts which the commoner shall think fit to put into the common, but it is limited to his own commonable cattle levant and couchant upon his land (that is to say, as many cattle as the produce of the land of the commoner in the summer and autumn can keep and maintain in the winter). (1 B. & Al., 711; 2 M. & R., 205.) And as it is uncertain how many in number these may be, there being in some years more than in others, it is therefore called common without number, as contradistinguished from common limited to a certain number, but still it is a common certain in its nature. (2 Brownl., 101; 1 Vent., 54; 5 T. R., 48; 8 Id., 396; 1 B. & Al., 706; 2 M. & Rob., 205; Selw., Ni Pri., tit. Common.) There

fore a plea, prescribing for common appurtenant to land for commonable cattle, without stating the number, or saying levant and couchant, as the case may be, is bad. (1 Saund., 28, b; Id., 343.) For it shall be intended common without number, according to the strict import of the words, without any limitation whatsoever. (1 Rol. Abr., 398, pl. 3, 401 pl. 3; Hard., 117, 118; 2 Saund., 346, n. (1); 8 T. R., 396.)—[CHITTY.]

In connection with the subject of common may be mentioned the right which a man may have by special grant to the vesture or herbage of land, as distinguished from any right to the soil or to buildings or timber on it, including merely the corn, underwood, grass, &c. It is not clear whether this is an incorporeal hereditament or not. Lord Coke speaks of a grant by deed, and adds, that livery of seizin secundum formam charte will not pass the soil. (Co. Litt., 4, b.) The right to the vesture carries the right to the possession of the land, which may be recovered in ejectment (Cro. Car., 362), and defended by action of trespass (Co. Litt., 46; 5 T. R., 329; see 6 Mee. & W., 541); but a sale of growing crops of corn or other emblements (vide infra, p. 122) is treated as a sale of chattels, conferring no interest in the land. (5 B. & Cr., 829; 4 Mee. & W., 343.) Trees growing or to grow hereafter on particular lands may be granted separately from the land, and, from evidence of acts of ownership, a grant of such a freehold estate may be presumed. (14 East, 332; 8 Rep., 136, b; 11 Rep., 49, b; Cro. Jac., 27; 2 Mod., 185; 1 Lord Raym., 726.)

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ute of Merton, however, and other subsequent statutes, the lord of a manor may inclose so much of the waste as he pleases, for tillage or wood ground, provided 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." 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; the lord for the public injury, and each commoner for his private damage.139

2, 3. Common of piscary is a liberty of fishing in another 2 & 3. Comman's water, as common of turbary is

i 20 Hen. III., c. 4; 29 Geo. II., c. 36; and 31 Geo. II., c. 41.

(38) The statute of Merton (20 Hen. III., c. 4), mentioned in the text, enacted that if, upon an assize brought by the tenants of a manor for their common of pasture, it was found that they had as much pasture as sufficed to the tenements, together with free egress and regress from their tenements to the pasture, they should be contented therewith. And this enactment, which applied only to common appendant, was extended to common appurtenant by the statute of Westm., 2d (13 Edw. I., c. 46), but not to common by special grant or feoffment; and the same statute authorized inclosures for the purpose of erecting wind-mills, sheep-cotes, dairies, &c., or for the enlargement of a court or necessary curtilage. (See 3 & 4 Edw. VI., c. 3; 2d Inst., 85, 473, 476; 3 T. R., 445; 7 B. & Cr., 364; 9 Id., 671; 9 Mee. & W., 830.) Inclosures of commons are usually made by authority of local acts of Parliament framed with reference to the provisions of the General Inclosure Act (41 Geo. III., c. 109), amended by the 1 & 2 Geo. IV., c. 23; 3 & 4 Will. IV., c. 87, and 3 & 4 Vict., c. 41; and inclosures may be effected under special circumstances without a particular act, under the authority of the statutes 6 & 7 Will. IV., c. 115, and 3 and 4 Vict, c. 41. See, also, 26 Geo. III., c. 36; 13 Geo. III., c. 81; 31 Geo. III., c. 41.

mon of pis

a liberty of digging cary and tur* 2 Inst., 474.

19 Rep., 113.

wise, without consent of homage. (1
Stark., 102; 3 T. R., 445.)

"It seemed to have been generally
understood that the lord could not ap-
prove, where the commoners had a right
of turbary, piscary, of digging sand, or
of taking any species of estovers upon
the common. (1 Taunt., 435; 2 T. R.,
391.) But it is now decided, agreeably
to the general principles of the subject,
that where the tenants have such rights,
they will not hinder the lord from in-
closing against the common of pasture,
if sufficient be left, for this is a right
quite distinct from the others (7 B. &
Cr., 371; 9 Id., 671); but if by such
inclosure the tenants are interrupted in
the enjoyment of their rights of turbary,
piscary, &c., then the lord can not just-
ify the approvement in prejudice of
these rights. (6 T. R., 741; Willes,
57.) The right of the commoners to
the pasturage may be subservient to
the right of the lord; for if the lord has
immemorially built houses or dug clay-
pits upon the common without any re-
gard to the extent of the herbage, the
immemorial exercise of such acts is evi-
dence that the lord reserved that right
to himself, when he granted the right of
pasturage to the commoners. (5 T. R.,
411.) If a lord of a manor plant trees
upon a common, a commoner has no
right to cut them down. His remedy is
only by an action. (6 T. R., 483; 1
Bos. & Pul., 14.)"-[CHRISTIAN.]

"See, as to approving, Com. Dig., Common; Selw., N. P., Common; 1 Saund., 346. Any person, who is seized (39) A severance of the wastes from in fee of part of a waste, may approve, the manor does not destroy the rights of besides the lord of the manor, provided the commoners. (2 T. R., 415; 8 Id., he leaves a sufficiency of common for 396.) the tenants of the manor, but not other

bary.

turf upon another's grounds. There is, also, a common of digging for coals, minerals, stones, and the like.40 All these bear a resemblance to common of pasture in many respects, [35] though in one point they go much further; 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 after mentioned, are a right of carrying away the very soil itself.41

4. Common of estovers.

IV. Private rights of

way.

4. Common of estovers, 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 bote12 is used by us as synonymous to the French estovers; and, therefore, house-bote is a sufficient allowance of wood to repair, or to burn in the house; which latter is sometimes called fire-bote; plow-bote and cart-bote are wood to be employed in making and repairing all instruments of husbandry; and hay-bote, or hedge-bote, is wood for repairing of hays, hedges, or fences. These botes or estovers must be reasonable ones; and such any tenant or lessee may take off the land let or demised to him, without waiting for any leave, assignment, or appointment of the lessor, unless he be restrained by special covenant to the contrary." n43

These several species of common do all originally result from the same necessity as common of pasture; viz., for the maintenance and carrying on of husbandry; common of piscary being given for the sustenance of the tenant's family; common of turbary and fire-bote for his fuel; and house-bote, plow-bote, cart-bote, and hedge-bote, for repairing his house, his instruments of tillage, and the necessary fences of his grounds.

IV. A fourth species of incorporeal hereditaments is that of ways, or the right of going over another man's ground. I speak not here of the king's highways, which lead from town to town, nor yet of common ways, leading from a village into the fields; but of private ways, in which a particular man may

m Co. Litt., 122.

(40) See 2 T. R., 391; 6 T. R., 748, as to the right to dig sand or gravel for repairs a species of common of estovers.

(41) "Common of turbary can not be appendant to land, but to a house, as it was held in 5 Ass., 9; for the thing which is appendant ought to agree with the nature and quality of the thing to which it is appendant, and turves are to be spent in a house." (Tyrringham's case, 4 Rep., 37.) And the commoner can only take turf for the use of the house to

■ Co. Litt, 41. [11 Rep., 46, b.]

which the right is appendant. (Noy, 145; 3 Atk., 189; 1 Sch. & Lef., 8; 7 East, 127.)

(42) "Saxonic. Emendatio, refectio, restauratio, compensatio." (Spelman, Gloss., voce.) To boot, is to help or mend any matter. From the French equivalent came our old-fashioned use of the word stuff for furniture.

(43) A tenant's right of taking estovers is, of course, not a right of common. (Vide infra, p. 122.)

have an interest and a right, though another be owner of the

44

tion.

soil. This may be grounded on a special permission; as, when By grant. the owner of the land grants to another a liberty of passing [ 36 ] over his grounds to go to church, to market, or the like; in which case the gift or grant is particular, and confined to the grantee alone: it dies with the person; and if the grantee leaves the country, he can not assign over his right to any other; nor can he justify taking another person in his company. A way By prescrip may be, also, by prescription; as if all the inhabitants of such a hamlet, or all the owners and occupiers of such a farm, have immemorially used to cross such a ground for such a particular purpose; for this immemorial usage supposes an original grant, whereby a right of way thus appurtenant to land or houses may clearly be created. A right of way may also of necessity. arise by act and operation of law; for if a man grants me a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives me a way to come at it, and I may cross his land for that purpose without trespass ;P for when the law doth give any thing to one, it giveth impliedly whatsoever is necessary for enjoying the same.145 By the law of the Twelve Tables at Rome, where a man had the right of way over another's land, and the road was out of repair, he who had the right of way might go over any part of the land he pleased; which was the established rule in public as well as private ways. And the law of England, in both cases, seems to correspond with the Roman.r46

• Finch, Law, 31.

P Ibid., 63.

9 Co. Litt., 56.

(44) This is an instance of a way by custom, not by prescription. (See p. 263.)

(45) See 4 Mau. & S., 293; 6 Mee. & W., 172. A right of way, thus arising from the necessity of the case, ceases with that necessity; as where by the purchase of land the party claiming the way obtains complete access through his own property. (9 J. B. Moore, 166; 7 Scott, 189.)

(46) In the absence of specific stipulation this is not so, at least as to ways by prescription or grant, and not of necessity, for at common law whoever has the use of a thing ought to repair it. Highways are governed by a different principle; they are for the public service, and if the usual track is impassable, it is for the general good that people should be entitled to pass in another line. (Doug., 748; 4 Mau. & S., 387.) On the subject of ways, see Gale and Whatley on Easements.

r Lord Raym., 725. 1 Brownl., 212. 2 Show, 28. 1 Jon., 297.

A way is an example merely of an easement, which, as has been said (ante, p. 32, n. (30) ), is a right to make use of another's land, or in some way to control his use of it, not amounting to a right either of exclusive possession, or of taking any tangible profit therefrom; water, whether standing or running, not being considered a profit. In the work already referred to, easements are described in the following manner:

"1st. Easements are incorporeal. 2dly. They are imposed upon corporeal property.

3dly. They confer no right to a participation in the profits arising from it. 4thly. They must be imposed for the benefit of corporeal property.

5thly. There must be two distinct tenements; the dominant, to which the right belongs, and the servient, upon which the obligation is imposed."

In commenting upon the fourth proposition, the learned writers observe, that personal rights bearing a resemblance to easements, such as rights of way in

V. Offices.

V. Offices, which are a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging, are also incorporeal hereditaments; whether public, as those of magistrates, or private, as of bailiffs, receivers, and the like.47 For a man may have an estate in them, either to him and his heirs, or for life, or for a term of years, or during pleasure only; save only that offices of public trust can not be granted for a term of years, especially if they concern the administration of justice, for then they might, perhaps, vest in executors or administrators.s Neither can any judicial office be granted in reversion; because, though the grantee may be able [ 37 ] to perform it at the time of the grant, yet, before the office falls, he may become unable and insufficient; but ministerial offices may be so granted, for those may be executed by deputy. Also, by statute 5 & 6 Edw. VI., c. 16, no public office (a few only excepted) shall be sold, under pain of disability to dispose of or hold it;49 for the law presumes that he who buys an of

$ 9 Rep., 97.

t

gross, as they are called, which may be
conferred by actual grant independently
of the possession of any tenement by the
grantee, do not possess the incidents of
proper easements, and that the remedy,
in case of a disturbance of a personal
right thus given, would appear to be
upon the contract only. Thus, in 21
Ed. III., 2, pl. 5, Shars, J., said, "Sup-
pose I grant to you a way over my land
to a certain mill, and you are not seized
of this mill at the time, but you purchase
it afterward, notwithstanding I disturb
you in this way afterward, you shall not
have assize, though you may have a
writ of covenant." But ways in gross
are always spoken of in the books as
actual easements and hereditaments; and
it was settled that, for a way in gross, a
writ on the case would lie, which could
not be if it rested merely on contract;
and in the case of a way by prescription
to a church, the reason why assize did not
lie, but only case, was, that the claimant
had no freehold in the church. (4 Ed.
III., Nusance, 8.) And, for a tenant for
years or against a stranger, the only rem-
edy was case. (See Bac. Ab., Chimin;
1 T. R., 560.)

The same writers enumerate the fol-
lowing instances of easements, which
they divide into negative and affirma-
tive: Of the former kind are rights of
way; right to discharge a stream of wa-
ter, either in its natural state, or changed
in quantity or quality; right to discharge
rain-water by a spout or projecting eaves;
right to support from a neighboring wall;
right to carry on an offensive trade; right
to hang clothes on lines passing over the

t 11 Rep., 4.

48

neighboring soil; right to bury in a particular vault. Of the latter kind are right to receive a flow of water (i. e., to prevent one's neighbor from diverting it); right to receive light and air by ancient windows, &c. (i. e., to prevent one's neighbor from obstructing one's light or air); right to support of neighboring soil.

An easement can only be gained by express grant, which must be by deed or by prescription, or, of modern times, by such a length of uninterrupted enjoyment (namely, for twenty years, or under certain circumstances, a longer period, vide infra, p. 263) as raises a presumption of a grant by deed, which has been lost. In either case the right, if appendant to a tenement, may be transferred by any mode of conveyance which will pass the tenement itself; but if it be a right in gross, a deed is necessary to pass it. (6 Rep., 43; 5 B. & Ad., 1.)

(47) As to offices in general, see Com. Dig., Cruise Dig., tit. Offices.

(48) By usage and custom a judicial office may be granted in reversion (Hardr., 357); and there are instances of offices granted for years; to which form of grant, indeed, there is no more objection than to a grant in fee. (Hardr., 46, 357; 2 Show., 171.).

(49) Scotland and Ireland have been brought within the operation of this statute by the stat. 49 Geo. III., c. 126, which also includes, with a few excep

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