which a man hath in the land of another; as to feed his beasts, to catch fish, to dig turf, to cut wood, or the like. b Finch, Law, 157. An objection to the more limited construction of the act, which appears to be not without weight, though it was not urged in either of the above cases, is, that if the act merely restrains the tithe owner from offering evidence older than sixty years to rebut a presumption arising from sixty years' enjoyment, and leaves the law otherwise unaltered, there seems to be no reason why it should be enacted that proof of thirty years' enjoyment should raise a primâ facie case, for that is nothing more than the rule at common law. In the above-mentioned case of Salkeld v. Johnston, Sir J. Wigram, V. C., expressed an opinion that the objection of rankness against a claim of modus would still be open under the act. But this position may be controverted without denying the correctness of the general construction for which his honor contended; because the rankness of a modus is a matter of evidence merely, used to raise a presumption that the modus had its origin subsequently to the commencement of legal memory; but when the act expressly denies effect to the most direct evidence of the same fact, it would be absurd to admit a mere presumption. Commutation of Tithes. Provision has been made by several recent acts of Parliament for the gradual but certain and universal commutation of tithes throughout England and Wales, either by voluntary agreement or by compulsion. The principal statute is the 6 & 7 Will. IV., c. 71, amended by the 7 Will. IV., & 1 Vict., c. 69; 1 & 2 Vict., c. 64; 2 & 3 Vict., c. 62; 3 & 4 Vict., c. 15; 5 Vict., c. 7; and 5 & 6 Vict., c. 54. There is another act for Ireland, 1 & 2 Vict., c.109; 3 & 4 Vict., c. 13. The management of the commutation is intrusted to three commissioners, with a common seal, two appointed and removable by the secretary of state, and the other by the Archbishop of Canterbury, and to twelve assistant commissioners, appointed by the chief commissioners. The end proposed by the act is to substitute for all tithes, moduses, and compositions real, and also (by stat. 2 & 3 Vict., c. 62, s. 9) Easter offerings, mortuaries, surplice fees, tithes of fish, and mineral tithes, not already commuted, a corn-rent, payable half yearly in money, And hence the amount of which is regulated by the current price of fixed equal quantities of wheat, barley, and oats, which quantities were ascertained in the first instance by reference to the average prices of those grains during the seven years ending at Christmas, 1835. The fluctuating amount of the rent charges is to be determined by reference to the current seven years' averages directed to be annually published in the London Gazette by the controller of corn returns. 1. Voluntary commutations by parochial agreements are to be made at meetings of land and tithe owners, called by the owners of one fourth in value of the lands or tithes within the parish; and agreements for commutation (containing certain prescribed particulars) made at such meetings with the consent of the owners of two thirds of the lands subject to tithes, and of two thirds of the owners of great and small tithes respectively, are to be binding on all parties, after confirmation by the tithe commissioners. If the tithe-owner be an archbishop or bishop, the consent of the crown, and if he be the incumbent of any other benefice or ecclesiastical dignity, the consent of the patron, is required; and, in the latter case, opportunity is to be afforded to the bishop of the diocese to give his advice and opinion to the commissioners previously to their confirmation of the agreement. In lieu of a rent charge in respect of any particular lands, the parties are empowered to give to any ecclesiastical owner lands not exceeding in the whole twenty acres in each parish. (See stat. 5 & 6 Vict., c. 54.) The amounts of the rent charges are to be ascertained according to prescribed rules, by valuers appointed at a parochial meeting. 2. The act was passed on the 13th of August, 1831, and the commissioners were directed, after the 1st of October, 1838, to proceed to compulsory commutation of tithes in all parishes where no voluntary agreement had been made and confirmed; and rules are laid down by which the amounts of the rent charges for each parish are to be ascertained. Provision is made for affording to all parties interested opportunity of making objections to the award of the commissioners, before it is confirmed. After the commissioners have confirm [ 33 ] 1. Of pas ture. Appendant. common is chiefly of four sorts: common of pasture, of piscary, of turbary, and of estovers. 1. Common of pasture is a right of feeding one's beasts on another's land; for in those waste grounds, which are usually called commons, the property of the soil is generally in the lord of the manor; as in common fields it is in the particular tenants. This kind of common is either appendant, appurtenant, because of vicinage, or in gross.c 31 d Common appendant is a right belonging to the owners or occupiers of arable land, 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 plow, or such as manure the ground.32 This is a matter of most universal right; and it was originally permitted, not only for the encouragement of agriculture, but for the necessity of the thing. For, when lords of manors granted out parcels of lands to tenants, for services either done or to be done, these tenants could not plow or manure the land without beasts; these beasts could not be sustained without pasture; and pas c Co. Litt., 122. ed their award, the apportionment of commissioners. There are special provisions for particular cases, such as disabilities, the apportionment of the total rent assessed upon one land-owner among different portions of his lands, &c. The lands are exempted from rent charge in all cases of spiritual occupation or otherwise, in which they would have been temporarily exempted from tithes before the commutation; but no merger is to be occasioned by unity of possession or otherwise, except where the commutation rent is held in fee-simple or tail, and the owner shall execute a release or disposition by deed, to be confirmed by the commissioners. The stats. 1 & 2 Vict., c. 64, and 2 & 3 Vict., c. 62, extend this power of merger to copyholds, and confer it on any person or persons who shall either alone or together be seized of or have the power of acquiring or disposing of the fee-simple in possession of any tithes or rent charge in lieu of tithes"-a tenant for life and the remainder-man in tail, for example. When the tithes, and the lands charged with them, are settled to the same uses, the tenant for life may effect a merger. Any charges which may af 66 d 2 Inst., 86. fect the commutation rent, in case of merger, are to be primary charges on the land, subject to a power of specially apportioning such charges on particular parts of such lands in lieu of the whole. The last-mentioned act provides, also, for the merger of commutation rents charged on glebe lands. The stat. 3 & 4 Vict., c. 15, authorizes the commissioners, under particular circumstances, to exempt small portions of land occupied as lawns or gardens, and small tenements, whereof, on account of its small value, tithe has not been claimed during seven years. After the apportionment of any part of the rent charge has been confirmed, it may be altered by the local commissioners of land-tax, with the consent of two justices of the peace. (31) Common appendant belongs only to arable land, and can not be claimed for more cattle than are necessary to plow or manure the tenant's arable land. Levancy and couchancy are incident to common appendant as well as appurtenant. (Willes, 227, 231; 1 B. & Ad., 710; 5 T. R., 46; 2 Mood. & R., 205.) But where a farm contains pasture, it may be presumed, if there is evidence of usage, that it was all originally arable. (Bac. Ab., Common (A., 1); 4 Rep., 37. See 5 Taunt., 244.) (32) That is to say, horses, kine, and sheep. e nant. ture 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. Common appurtenant ariseth from no connection of tenure, nor Appurtefrom any absolute necessity; but may be annexed to lands in other lordships,f or extend to other beasts, besides such as are generally commonable; as hogs, goats, or the like, which neither plow 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, which the law esteems sufficient proof of a special grant or agreement, for this purpose.33 Common because of vicinage, or neighborhood, is where the in- Par cause de habitants 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 mo- [ 34 ] lestation from either. 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 intercommoned time out of mind.34 Neither hath any person of one town 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 trespass.h35 Common in gross, or at large, is in gross. such as is neither appendant nor appurtenant to land, but is annexed to a man's person;36 being granted to him and his heirs e Stiernh., De Jure Sueonum, 1. 2, c. 6. f Cro. Car., 482. 1 Jon., 397. Co. Litt., 121, 122. h Co. Litt., 122. (33) It may be created by modern B. & Ad., 168); and thus, by circuity, grant. (15 East, 116.) "Appendants," may be destroyed in part. says Lord Coke, "are ever by prescription, but appurtenants may be created in some cases at this day." (Co. Litt., 121, b.) And, therefore, in pleading common appendant, it is unnecessary to add the usual form of prescribing, for that is implied. (Id., 122, a. See 8 Rep., 157; Cro. Car., 482.) As to the time now requisite to establish a title by prescription, see infra, p. 265. If a tenant, entitled to common appendant, purchase part of the land over which he has the right of common, this is no extinguishment of his right over the rest, but it is said to be otherwise of common appurtenant. (1 Bac. Ab., 628; 4 Rep., 38; 8 T. R., 101.) And yet common appurtenant may be apportioned by division of the land to which it is annexed (4 Rep., 38; 8 Id., 79; 2 (34) See 13 East, 348. (35) See 6 Scott, 172, 440. (36) Levancy and couchancy is, therefore, not incident to a right of common in gross, for it may be for any certain and definite number of cattle. An unlimited right to pasture cattle in an open field is rather a right to take all the herbage, and is a sole and several pasturage, which may be claimed by prescription, and is assignable. (Co. Litt., 122; 6 Mee. & W., 541; 5 Taunt, 244; 4 Scott, N. R., 356.) A right of common in gross, as the going of two head of cattle on a common," is a tenement within the statute 13 & 14 Car. II. (7 T. R., 671; 2 Nol., Pl., ch. 23, s. 2.) vicinage. 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.) (37) The notion of this species of common is exploded; a right of common without stint can not exist in law. (Willes, 232; Saund., 346; 8 T. R., 396; 2 Saund., N. S., 26.) A right of pasturage without stint and in gross is, in fact, a right, not of common, but of exclusive pasturage. (Ante, p. 34, n. (36) ). 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."k 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. "See, as to approving, Com. Dig., Common; Selw., N. P., Common; Saund., 346. Any person, who is seized in fee of part of a waste, may approve, besides the lord of the manor, provided he leaves a sufficiency of common for the tenants of the manor, but not other mon of pis a liberty of digging cary and tur k 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 approve, 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 inclosing 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 justify 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 claypits upon the common without any regard to the extent of the herbage, the immemorial exercise of such acts is evidence 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.] (39) A severance of the wastes from the manor does not destroy the rights of the commoners. (2 T. R., 415; 8 Id., 396.) bary. |