ments to which such right of pasture doth belong; and to and for the major part, in number and value, of the owners and occupiers of such tenements, by and with the assent of the owner or owners of the said wastes, woods, and pastures; and to or for any other person or persons, or bodies politic, by and with the assent and grant of the owner or owners of such wastes, woods, and pastures, and the major part in number and value of the owners and occupiers of such tenements, to inclose, for the growth and preservation of timber and underwood, any part of such wastes, woods, and pastures. 84. By the statute 31 Geo. II. c. 41., it is provided, that if any recompence be agreed to be given for such inclosure, it shall be made to the persons interested in the right of common, in proportion to their respective rights, and not to the overseers of the poor, as was directed by the second section of the preceding act. And the powers given to owners by that act may be exercised by tenants for life, or years, during their respective interests; with a proviso, that nothing done by them shall have effect after the determination of their estates. 85. Commons have frequently, in modern times, been entirely inclosed, and allotted to the persons having rights of common, in proportion to the number of cattle they were entitled to put on the common. But this is usually effected by means of a private act of parliament; of which an account will be given in a subsequent title. And by the stat. 13 Geo. III. c. 81. § 15., lords of manors, with the consent of threefourths of the persons having right of common, are enabled to lease for four years, any part of the said commons, not exceeding a twelfth part thereof; and Extinguishment of Common. By Release. Rotherham v. Green, Cro. Eliz. 593. By Unity of 4 Rep. 38 a. Bradshaw v. Eyre, Cro. Eliz. 570. to apply the rent in draining, fencing, or otherwise improving the residue of the said wastes. 86. A right to common may be extinguished by a release, by unity of possession of the land, by severance, or by the enfranchisement of a copyhold. 87. A right of common may be extinguished by a release of it to the owner of the soil. And it has been determined, that if a commoner releases part of the common, it will operate as an extinguishment of the whole; because the right of common is entire throughout the whole land: therefore, a release of part is a release of the whole. 88. Common appendant and appurtenant become extinguished by unity of possession of the land, to which the right of common was annexed, with the land in which the common was; for where a man has as high and perdurable an estate in the land as in the common, there the common becomes extinct. 89. In trespass for breaking his close in Abney, the defendant pleaded, that long before, &c., one Bradshaw was seised of the place where, &c. in fee; that one Fuljamb was seised in fee of a house and 20 acres of land in Abney aforesaid; that the said Fuljamb, and all those whose estate, &c. had common in the said place where, &c. and the said Fuljamb, enfeoffed of the said tenement the said Bradshaw; that afterwards the said Bradshaw let unto the defendant the said house and 20 acres of land, with all commons, profits, and commodities thereto appertaining, or used with the said messuage; and thereby justified putting in his cattle to use the common, &c. Upon demurrer, it was held clearly that this common was extinguished by the unity of possession, and could not be revived again. Gawdy, Just. said it was the same of common appendant. 3 Leon. 128. 90. Where the abbot of D. was seised of a common Nelson's out of the abbey of S., as appurtenant to certain Case, lands of the abbey of D.; afterwards both these abbeys were dissolved, and the possessions of both were given to the King, to hold in as ample a manner as the abbots held them. Afterwards, the King granted the lands of one abbey to A., and those of the other abbey to B. It was determined that the words "in as ample a manner, &c." were to be construed according to law, and no further; and that the unity of possession of the King had extinguished the common. 91. To constitute such an unity of possession as will extinguish a right of common, the person must have an estate in the lands to which the common is annexed, and in those where the right of common exists, equal in duration, and all other circumstances of right. 92. A right of common was appendant to certain Rex v. Hertenements, which were parcel of the abbey of Sarum, Carth.239. mitage, in a common that was parcel of the Duchy of Cornwall. Upon the dissolution of the abbey of Sarum, these tenements became vested in King Henry VIII. in fee, in whom the Duchy of Cornwall was then vested, for want of a Duke of Cornwall. Resolved, by Lord Holt and the rest of the Judges, that this was not such an unity of possession as would destroy the right of common, because King Henry VIII. had not as perdurable an estate in the one as in the other; for in the Duchy of Cornwall the King had only a fee determinable on the 'birth of a Duke of Cornwall, which was a base fee; but in the tenements in question he had a pure fee simple, indeterminable, jure coronæ. Anon. Godb. 4. Dyer, 339. pl. 45. ante, f 45. 93. A parson had common appendant to his parsonage, in the lands of an abbey; afterwards the abbot had the parsonage appropriated to him and his successors. It was held by Wyndham and Meade, contra Dyer, that the abbot had not as perdurable an estate in the one as in the other; for the parsonage might be disappropriated, and then the parson would have the common again. 94. Where the lord approves a part of the waste, and afterwards one of the commoners purchases the part so approved, this will not extinguish his right of common; because, by the approvement, the land was utterly discharged of common. 95. It has been stated, that where a person having common appurtenant, purchases part of the lands, wherein the common is to be had; the whole 8 Rep. 79 a. right of common shall be extinct. It has also been BySeverance. 1 Roll. Ab. 401. held, that where a person having common appurtenant, takes a lease of part of the land, in which he has such right of common, all his common shall be suspended during the continuance of the lease; because it was the folly of the commoner to intermeddle with the land, over which he had a right of common. 96. Common appendant or appurtenant for cattle levant and couchant, may also be extinguished by severance. As where a person having common of this kind annexed to a messuage or tenement, conveys away the messuage or tenement, excepting the common, this creates an extinguishment of the common. 97. Where a right of common is annexed to a Copyholds, copyhold, and the lord grants the land to the copyTit. 10. c. 6. holder and his heirs, cam pertinentiis; the common is extinguished; because it was annexed to the custo By Enfran chisement of Marsham v. Hunter, Gilb. Ten. mary estate, which being destroyed and converted Cro. Ja. 253. into a freehold, the right of common is gone. And 224. the words cum pertinentiis cannot have the effect of continuing it; because the right of common was not appurtenant to the freehold estate granted by the lord. Walker, 2 Vern. 250. 98. This doctrine does not appear to be allowed in Styant v. equity; for where the lord of a manor enfranchised a copyhold, with all common thereto belonging or appertaining; afterwards bought in all the copyholds, and then disputed the right of common with the copyholder he had enfranchised, and recovered against him; the Court decreed that he should hold and enjoy the same right of common which belonged to the copyhold. 99. It is said by Lord Holt, that if a copyholder 6 Mod. 20. of one manor has common in the wastes of another manor, an enfranchisement of the copyhold does not extinguish the common; for it is a derivative right which the copyholder has. So, if it be taken as appendant to land, enfranchisement will not extinguish it. 100. A right of common, which has been extin- Commonmay guished by unity of possession, may be revived by a be revived. new grant, 101. Thus, in the case of Bradshaw v. Eyre, the ante § 89. Court held that the words of the lease," all commons, profits, &c. occupied or used with the said messuage, &c." operated as a grant of a new right of common. For although it was not common in the purchaser's hands, yet it was quasi common, used therewith ; and though not the same common as was used before, yet it was the like common. was 102. Where common appurtenant to a messuage Sandys v. extinguished by unity of possession in the lord's Oliff, Moo |