m 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 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 prescripmay be, also, by prescription; as if all the inhabitants of such tion. 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.44 A right of way may also ofnecessityarise 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; for when the law doth give any thing to one, it giveth impliedly whatsoever is necessary for enjoying the same.q45 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. q 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. Lord Raym., 725. 1 Brownl., 212. 2 Show, 28. 1 Jon., 297. A way is an example merely of an casement, 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." 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 11 Rep., 4. gross, as they are called, which may be The same writers enumerate the fol- 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 fice will, by bribery, extortion, or other unlawful means, make his purchase good, to the manifest detriment of the public. VI. Dignities bear a near relation to offices. Of the nature vi. Digniof these we treated at large in the former book;" it will, there- ties. fore, be here sufficient to mention them as a species of incorporeal hereditaments, wherein a man may have a property or estate. 51 chises. VII. Franchises are a seventh species. Franchise and lib- vII. Franerty are used as synonymous terms; and their definition is, a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject. Being, therefore, derived from the crown, they must arise from the king's grant; or, in some cases, 50 may be held by prescription, which, as has been frequently said, presupposes a grant. The kinds of them are various and almost infinite: I will here briefly touch upon some of the principal, premising only that they may be vested in either natural persons or bodies politic; in one man or in many; but the same identical franchise that has before been granted to one can not be bestowed on another, for that would prejudice the former grant." kinds enu To be a county palatine is a franchise vested in a number Different of persons. It is likewise a franchise for a number of persons merated. to be incorporated, and subsist as a body politic, with a power to maintain perpetual succession, and do other corporate acts; and each individual member of such corporation is also said to have franchise or freedom. Other franchises are, to hold a court leet; to have a manor or lordship, or, at least, to have a lordship paramount; to have waifs, wrecks, estrays, treasure- [ 38 ] trove, royal fish, forfeitures, and deodands; to have a court of one's own, or liberty of holding pleas, and trying causes; to have the cognizance of pleas, which is a still greater liberty, being an exclusive right, so that no other court shall try causes arising within that jurisdiction; to have a bailiwick, or liberty exempt from the sheriff of the county, wherein the grantee only, and his officers, are to execute all process; to have a fair u See Book i., ch. 12. tions, all offices in the gift of the crown (50) Such franchises as can not be enjoyed without matter of record, can not be claimed by prescription; for a record w 2 Roll. Abr., 191. Keilw., 196. can not be presumed from such evidence. (51) See 2 You. & J., 285; 3 Burr., 1812. Forests. Chases. Parks. Free warrens. or market,52 with the right of taking toll, either there or at any other public places, as at bridges, wharves, or the like; which tolls must have a reasonable cause of commencement (as in consideration of repairs or the like), else the franchise is illegal and void;x53 or, lastly, to have a forest, chase, park, warren, or fishery, endowed with privileges of royalty; which species of franchise may require a more minute discussion. As to a forest, this, in the hands of a subject, is properly the same thing with a chase, being subject to the common law, and to the forest laws.y54 But a chase differs from a park, in that it is not inclosed, and also in that a man may have a chase in another man's ground as well as in his own, being, indeed, the liberty of keeping beasts of chase or royal game therein, protected even from the owner of the land, with a power of hunting them thereon. A park is an inclosed chase, extending only over a man's own grounds. The word park, indeed, properly signifies an inclosure; but yet it is not every field or common which a gentleman pleases to surround with a wall or paling, and to stock with a herd of deer, that is thereby constituted a legal park; for the king's grant, or at least immemorial prescription, is necessary to make it so. Though now the difference between a real park, and such inclosed grounds, is in many respects not very material; only that it is unlawful at common law for any person to kill any beasts of park or chase, a55 except such as possess these franchises of forest, chase, or park. Free warren is a similar franchise erected56 for * 2 Inst., 220. y 4 Inst., 314. pres legal sense extend, likewise, to all the beasts of the forest; which, besides the z Co. Litt., 233. 2 Inst., 199. 11 other, are reckoned to be hart, hind, Rep., 86. a These are properly buck, doe, fox, martin, and roe; but in a common and (52) As to the connection between the right to the soil and the right to the franchise of a fair or market, and the power of removing a fair or market, see 7 Ad. & El., 95; 1 Wils., 107; 3 East, 538; 5 Ad. & El., 460. As to juries, see Peter v. Kendal, 6 B. & Cr., 703. (53) For such franchises are restrictive on the public, and if they are disturbed or evaded the grantee has a remedy (see 4 T. R., 666; 5 Mee. & W., 375; 6 Id., 234); and therefore, also, he is bound to afford the public the full benefit of his franchise. (Wiles, 510; Show., 231. See 2 Cl. & Fin., 513.) (54) But a subject may have a forest, with the privilege of forest courts and officers, by grant under the Great Seal. (Manwood, pl. 77, 88; Cro. Jac., 155.) "The king, before the Charta de Forestâ, could have made a forest wherever he hare, boar, and wolf, and, in a word, all wild beasts of venary or hunting.— (Co. Litt., 233.) pleased over the lands of his subjects; but after the boundaries of the district fixed upon were marked out and proclaimed by the sheriff, it was only a chase till proper officers were appointed, when it became a forest, and under the jurisdiction of the chief justice in eyre. (Manw., tit. Forest, pl. 7.) A forest is not necessarily a chase in the hands of a subject; for it may be granted by the king, subject to the justice-seat and the forest laws, as the Duke of Lancaster and Duke of Norfolk, and many other noblemen, have had forests subject to the forest laws; but if the jurisdiction is not added in the grant, it becomes a chase, and trespassers in it are punishable only by the common law." (Ib., pl. 67, et seq.; 4 Inst., 314.)-[CHRISTIAN.] (55) But see infra, p. 419. (56) A free warren may be granted |
