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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. And hence
b Finch, Law, 157. An objection to the more limited con- the amount of which is regulated by the struction of the act, which appears to be current price of fixed equal quantities of not without weight, though it was not wheat, barley, and oats, which quantities urged in either of the above cases, is, were ascertained in the first instance by that if the act merely restrains the tithe reference to the average prices of those owner from offering evidence older than grains during the seven years ending sixty years to rebut a presumption aris- at Christmas, 1835.
The fluctuating ing from sixty years' enjoyment, and amount of the rent charges is to be de leaves the law otherwise unaltered, there termined by reference to the current seems to be no reason why it should be seven years' averages directed to be anenacted that proof of thirty years' enjoy- nually published in the London Gazette ment should raise a primâ facie case, for by the controller of corn returns. that is nothing more than the rule at 1. Voluntary commutations by parocommon law.
chial agreements are to be made at meetIn the above-mentioned case of Sal- ings of land and tithe owners, called by keld v. Johnston, Sir J. Wigram, V. C., the owners of one fourth in value of the expressed an opinion that the objection lands or tithes within the parish ; and of rankness against a claim of modus agreements for commutation (containing would still be open under the act. But certain prescribed particulars) made at this position may be controverted with- such meetings with the consent of the out denying the correctness of the gen- owners of two thirds of the lands suberal construction for which his honor ject to tithes, and of two thirds of the contended ; because the rankness of a owners of great and small tithes respectmodus is a matter of evidence merely, ively, are to be binding on all parties, used to raise a presumption that the after confirmation by the tithe commismodus had its origin subsequently to the sioners. If the tithe-owner be an archcommencement of legal memory; but bishop or bishop, the consent of the when the act expressly denies effect to crown, and if he be the incumbent of the most direct evidence of the same any other benefice or ecclesiastical digfact, it would be absurd to admit a mere nity, the consent of the patron, is requirpresumption.
ed; and, in the latter case, opportunity
is to be afforded to the bishop of the diCommutation of Tithes.
ocese to give his advice and opinion to Provision has been made by several the commissioners previously to their recent acts of Parliament for the gradu- confirmation of the agreement. al but certain and universal commuta- In lieu of a rent charge in respect of tion of tithes throughout England and any particular lands, the parties are emWales, either by voluntary agreement powered to give to any ecclesiastical or by compulsion. The principal statute owner lands not exceeding in the whole is the 6 & 7 Will. IV., c. 71, amended twenty acres in each parish. (See stat. by the 7 Will. IV., & 1 Vict., c. 69; 1 5 & 6 Vict., c. 54.) & 2 Vict., c. 64; 2 & 3 Vict., c. 62 ; 3 & The amounts of the rent charges are 4 Vict., c. 15; 5 Vict., c. 7; and 5 6 to be ascertained according to prescribed Vict., c. 54. There is another act for Ire- rules, by valuers appointed at a parochial land, 1 & 2 Vict., c.109; 3 & 4 Vict., c. 13. meeting.
The management of the commutation 2. The act was passed on the 13th of is intrusted to three commissioners, with August, 1831, and the commissioners a common seal, two appointed and remo- were directed, after the 1st of October, vable by the secretary of state, and the 1838, to proceed to compulsory commuother by the Archbishop of Canterbury, tation of tithes in all parishes where no and to twelve assistant commissioners, voluntary agreement had been made and appointed by the chief commissioners. confirmed; and rules are laid down by
The end proposed by the act is to sub- which the amounts of the rent charges stitute for all tithes, moduses, and com- for each parish are to be ascertained. positions real, and also (by stat. 2 & 3 Provision is made for affording to all Vict., c. 62, s. 9) Easter offerings, mor- parties interested opportunity of making tuaries, surplice fees, tithes of fish, and objections to the award of the commismineral tithes, not already commuted, a sioners, before it is confirmed. corn-rent, payable half yearly in money, After the commissioners have confirm
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.
Common appendant is a right belonging to the owners or occupiers of arable land,31 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,d 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 pasc Co. Litt., 122.
d 2 Inst., 86. ed their award, the apportionment of fect the commutation rent, in case of the rent charge among the different land- merger, are to be primary charges on owners and tithe-owners is to be ascer- the land, subject to a power of specially tained within six months, by valuers ap- apportioning such charges on particular pointed at parochial meetings, and, in parts of such lands in lieu of the whole. case the apportionment is not completed The last-mentioned act provides, also, for within that time, it is to be made by the the merger of commutation rents.chargcommissioners.
ed on glebe lands. There are special provisions for par- The stat. 3 & 4 Vict., c. 15, authorticular cases, such as disabilities, the ap. izes the commissioners, under particular portionment of the total rent assessed circumstances, to exempt small portions upon one land-owner among different of land occupied as lawns or gardens, portions of his lands, &c.
and small tenements, whereof, on acThe lands are exempted from rent count of its small value, tithe has not charge in all cases of spiritual occupation been claimed during seven years. or otherwise, in which they would have After the apportionment of any part been temporarily exempted from tithes of the rent charge has been confirmed, before the commutation ; but no merger it may be altered by the local commisis to be occasioned by unity of posses- sioners of land-tax, with the consent of sion or otherwise, except where the com- two justices of the peace. mutation rent is held in fee-simple or tail, and the owner shall execute a re- (31) Common appendant belongs only lease or disposition by deed, to be con- to arable land, and can not be claimed firmed by the commissioners. The stats. for more cattle than are necessary to 1 & 2 Vict., c. 64, and 2 & 3 Vict., plow or manure the tenant's arable land. c. 62, extend this power of merger to Levancy and couchancy are incident to copyholds, and confer it on any person common appendant as well as appurteor persons who shall either alone or to. nant. (Willes, 227, 231; 1 B. & Ad., gether be seized of or have the power 710; 5 T. R., 46 ; 2 Mood. & R., 205.) of acquiring or disposing of the fee-sim- But where a farm contains pasture, it ple in possession of any tithes or rent may be presumed, if there is evidence charge in lieu of tithes”-a tenant for life of usage, that it was all originally arable. and the remainder-man in tail, for ex- (Bac. Ab., Common (A., 1); 4 Rep., 37. ample. When the tithes, and the lands See 5 Taunt., 244.) charged with them, are settled to the same uses, the tenant for life may effect (32) That is to say, horses, kine, and a merger. Any charges which may af- sheep.
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, 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. Common because of vicinage, or neighborhood, is where the in- Par cause de habitants of two townships, which lie contiguous to each other, vicinage. 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, l. 2, c. 6.
& Co. Litt., 121, 122.
(33) It may be created by modern B. & Ad., 168); and thus, by circuity, grant. (15 East, 116.) 66 Appendants," may be destroyed in part. says Lord Coke, "are ever by prescription, but appurtenants may be created (34) See 13 East, 348. in some cases at this day.” (Co. Litt., 121, b.) And, therefore, in pleading (35) See 6 Scott, 172, 440. common appendant, it is unnecessary to add the usual form of prescribing, for (36) Levancy and couchancy is, therethat is implied. (Id., 122, a. See 8 fore, not incident to a right of common Rep., 157; Cro. Car., 482.) As to the in gross, for it may be for any certain time now requisite to establish a title by and definite number of cattle. prescription, see infra, p. 265.
An unlimited right to pasture cattle in If a tenant, entitled to common ap- an open field is rather a right to take all pendant, purchase part of the land over the herbage, and is a sole and several paswhich he has the right of common, this turage, which may be claimed by preis no extinguishment of his right over scription, and is assignable. (Co. Litt., the rest, but it is said to be otherwise 122 ; 6 Mee. & W., 541 ; 5 Taunt, 244; of common appurtenant. (1 Bac. Ab., 4 Scott, N. R., 356.) A right of common 628; 4 Rep., 38; 8 T. R., 101.) And in gross, as the going of two head of yet common appurtenant may be appor cattle on a common,” is a tenement withtioned by division of the land to which in the statute 13 & 14 Car. II. (7 T. R., it is annexed (4 Rep., 38; 8 Id., 79; 2 671; 2 Nol., Pl., ch. 23, s. 2.)
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
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
Limited as to number or time, or without stint.
Cattle-gates (which are common in fore a plea, prescribing for common apthe north) seem to differ from common purtenant to land for commonable cattle, of pasture, for the owners of them have without stating the number, or saying a joint possession and a several inher- levant and couchant, as the case may be, itance, and have an interest in the soil is bad. (1 Saund., 28, b; Id., 343.) itself, and they are conveyed by lease For it shall be intended common withand release. (1 T. R., 137.) An eject- out number, according to the strict imment will lie for a beast-gate in Suffolk port of the words, without any limitation (signifying land and common for one whatsoever. (1 Rol. Abr., 398, pl. 3,401, beast) (2 Štra., 1084); and so for a cat- pl. 3; Hard., 117, 118; 2 Saund., 346, tle-gate. (2 T. R., 452 ; Rep. T., Hardw., n. (1); 8 T. R., 396.)-[Chitty.] 167; Sel., N. P., Ejectment, 3, n. 8; 6 In connection with the subject of Mee. & W., 541.)
common may be mentioned the right If A., and all those whose estate he which a man may have by special grant has in the manor of D., have had from to the vesture or herbage of land, as distime immemorial a fold-course, that is, tinguished from any right to the soil or common of pasture for any number of to buildings or timber on it, including sheep not exceeding 300, in a certain merely the corn, underwood, grass, &c. field as appurtenant to the manor, he It is not clear whether this is an incormay grant over to another this fold- poreal hereditament or not. Lord Coke course, and so make it in gross, because speaks of a grant by deed, and adds, the common is for a certain number, and that livery of seizin secundum formam by the prescription the sheep are not to charte will not pass the soil. (Co. Litt., be levant and couchant on the manor. 4, b.). The right to the vesture carries (1 Rol. Ab., 402, pl. 3; Cro. Car., 432; the right to the possession of the land, Sir W. Jones, 375; 2 Vent., 139.) which may be recovered in ejectment
Common appendant and appurtenant (Cro. Car., 362), and defended by action are limited, as to the number of cattle, of trespass (Co. Litt., 46 ; 5 T. R., 329; either to an express number, or by lev- see 6 Mee. & W., 541); but a sale of ancy and couchancy, sometimes termed growing crops of corn or other emblecommon without number. (Willes, 232.) ments (vide infra, p. 122) is treated as a By common without number is not meant sale of chattels, conferring no interest in common for any number of beasts which the land. (5 B. & Cr., 829; 4 Mee. & the commoner shall think fit to put into W., 343.) Trees growing or to grow the common, but it is limited to his own hereafter on particular lands may be commonable cattle levant and couchant granted separately from the land, and, upon his land (that is to say, as many from evidence of acts of ownership, a cattle as the produce of the land of the grant of such a freehold estate may be commoner in the summer and autumn presumed. (14 East, 332 ; 8 Rep., 136, can keep and maintain in the winter). b; 11 Rep., 49, b; Cro. Jac., 27; 2 (1 B. & Al., 711; 2 M. & R., 205.) And Mod., 185; 1 Lord Raym., 726.) as it is uncertain how many in number these may be, there being in some years (37) The notion of this species of more than in others, it is therefore called common is exploded; a right of comcommon without number, as contradis- mon without stint can not exist in law. tinguished from common limited to a (Willes, 232 ; Saund., 346; 8 T. R., certain number, but still it is a common 396 ; 2 Saund., N. S., 26.) A right of certain in its nature. (2 Brownl., 101 ; pasturage without stint and in gross is, 1 Vent., 54 ; 5 T. R., 48; 8 Id., 396 ; in fact, a right, not of common, but of 1 B. & Al., 1706 ; 2 M. & Rob., 205; exclusive pasturage. (Ante, p. 34, n. Selw., Ni. Pri., tit. Common.) There- (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 suffịcient 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.l.
2, 3. Common of piscary is a liberty of fishing in another 2 & 3. Com
mon of pisman's water, as common of turbary is a liberty of digging i 20 Hen. III., c. 4; 29 Geo. II., C.
k 2 Inst., 474. 36; and 31 Geo. II., c. 41.
19 Rep., 113.
cary and turbary.
(38) The statute of Merton (20 Hen. wise, without consent of homage. (1 III., c. 4), mentioned in the text, enact- Stark., 102 ; 3 T. R., 445.) ed that if, upon an assize brought by the “It seemed to have been generally tenants of a manor for their common of understood that the lord could not appasture, it was found that they had as prove, where the commoners had a right much pasture as sufficed to the tene- of turbary, piscary, of digging sand, or ments, together with free egress and re- of taking any species of estovers upon gress from their tenements to the past- the common. (1 Taunt., 435; 2 T. R., ure, they should be contented therewith. 391.) But it is now decided, agreeably An this enactment, which applied only to the general principles of the subject, to commun appendant, was extended to that where the tenants have such rights, common appurtenant by the statute of they will not hinder the lord from inWestm., 2d (13 Edw. I., c. 46), but not closing against the common of pasture, to common by special grant or feoffment; if sufficient be left, for this is a right and the same statute authorized in- quite distinct from the others (7 B. & closures for the purpose of erecting Cr., 371 ; 9 Id., 671); but if by such wind-mills, sheep-cotes, dairies, &c., or inclosure the tenants are interrupted in for the enlargement of a court
or neces- the enjoyment of their rights of turbary, sary curtilage. (See 3 & 4 Edw. VI., piscary, &c., then the lord can not justc. 3; 2d Inst., 85, 473, 476 ; 3 T. R., ify the approvement in prejudice of 445 ; 7 B. & Cr., 364 ; Id., 671 ; 9 these rights. (6 T. R., 741; Willes, Mee. & W., 830.) Inclosures of com- 57.) The right of the commoners to mons are usually made by authority of the pasturage may be subservient to local acts of Parliament framed with ref- the right of the lord; for if the lord has erence to the provisions of the General immemorially built houses or dug clayInclosure Act (41 Geo. III., c. 109), pits upon the common without any reamended by the 1 & 2 Geo. IV., c. 23; gard to the extent of the herbage, the 3 & 4 Will. IV., c. 87, and 3 & 4 Vict., immemorial exercise of such acts is evic. 41; and inclosures may be effected dence that the lord reserved that right under special circumstances without a to himself, when he granted the right of particular act, under the authority of pasturage to the commoners. (5 T. R., the statutes 6 & 7 Will. IV., c. 115, and 411.) If a lord of a manor plant trees 3 and 4 Vict., c. 41. See, also, 26 Geo. upon a common, a commoner has no III., c. 36 ; 13 Geo. III., c. 81; 31 Geo. right to cut them down. His remedy is III., c. 41.
only by an action. (6 T. R., 483; 1 “See, as to approving, Com. Dig., Bos. & Pul., 14.)”—[ CHRISTIAN.] 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