3. Common appendant, is a right annexed to the Appendant. possession of land, by which the owner of such land

is entitled to feed his beasts on the wastes of the

manor. The origin of which is thus described by Lord Coke.

4. "When a lord of a manor, wherein was great 2 Inst. 85. waste grounds, did enfeoff others of some parcels of 4 Rep. 37 a. arable land, the feoffees, ad manutendum servitium soca, should have common in the said wastes of the lord, for two causes; first, as incident to the feoffment; for the feoffee could not plough and manure his ground without beasts, and they could not be sustained without pasture; and by consequence the tenant should have common in the wastes of the lord for his beasts, which do plough and manure his tenancy, as appendant to his tenancy; and this was the beginning of common appendant. The second reason was for maintenance and advancement of agriculture and tillage, which was much favoured in law."

396.

5. Common appendant must be time out of mind, 1 Roll. Ab. and can only be claimed by prescription; so that it cannot be pleaded by way of custom. Thus where a person alleged a custom, that every inhabitant of a certain town had common of pasture in a particular Gateward's Case, place; it was resolved that such custom was against 6 Rep. 59. law, and therefore void.

6. Common appendant is regularly annexed to arable land only; yet it may be claimed as appendant to a manor, farm, or carve of land, though it contain pasture, meadow, and wood; for it will be presumed to have all been originally arable: but a prescription to have common appendant to a house, meadow, or pasture, is void.

1 Inst. 122 a.

1 Roll. Ab. 397-8. Bennet v. Reeve,

4. Vin. Ab. 583. Willes R. 227. Benson v. Chester, 8 Term R. 396.

Appurtenant.

1 Roll. Ab. 399.

7. Common of pasture may be appendant to a cottage, for a cottage has at least a curtilage annexed to it; nor is it deemed in law to be a cottage, unless there are four acres of land belonging to it.

8. It was resolved by the Court of King's Bench, in a modern case, that the owner of a tenement may have two distinct rights of common for his cattle, upon different wastes, in different manors, under several lords: though it might be otherwise if the different wastes had appeared to have been originally held under the same lord.

9. Common appendant can only be claimed for such cattle as are necessary to tillage; as horses and oxen to plough the land; and cows and sheep to manure it.

10. Common appendant may by usage be limited to any certain number of cattle: but where there is no such usage, it is restrained to cattle levant and couchant upon the land, to which the right of common is appendant: and the number of cattle which are allowed to be levant and couchant, shall be ascertained by the number of cattle which can be maintained on the land during the winter.

11. Common appurtenant does not arise from any connexion of tenure, but must be claimed by grant or prescription; and may be annexed to lands lying in different manors from those in which it is claimed.

This species of common, though frequently confounded with common appendant, differs from it in many circumstances. It may be created by grant, whereas common appendant can only arise from prescription. It may be claimed as annexed to any kind of land, whereas common appendant can only be

claimed on account of ancient arable land. It may be not only for beasts usually commonable, such as horses, oxen, and sheep, but likewise for goats, swine, &c.

180. n.

12. Common appurtenant may be for cattle with- Fitz. N. B. out number, or for a certain number only; and may be appurtenant to a manor by prescription, or by grant, made since time of memory; and that as well for a certain number of cattle, as without number: where it is without number, it is restrained to cattle 1 Roll. Ab. levant and couchant on the land to which it is annexed. 398. Therefore, if a person claims common by prescription on the land of another, for all manner of commonable. cattle, as belonging to a tenement, this is a void prescription; because he does not say that it is for cattle Stevens v. levant and couchant on the land.

Austin,

2 Mod. 185. Scholes v.

5 Term R.

13. It has been determined in a modern case, that common for cattle levant and couchant, cannot be Hargreaves, claimed by prescription, as appurtenant to a house, 46. without any curtilage or land. And Mr. Justice Buller said, the only question was, what was meant in former cases by the words messuage and cottage, annexed to which was the right of common claimed ; for in all of them, the Court said, they would intend that land was included therein. And that it was necessary there should be some land annexed to the house, was clear, from considering what was meant by levancy and couchancy: it meant the possession of such land as would keep the cattle claimed to be commoned, during the winter; and as many as the land would maintain during the winter, so many should be said to be levant and couchant.

398.

14. Persons entitled to common appendant or ap- 1 Roll. Ab. purtenant, cannot in general use the common but with their own cattle. If, however, they take the

GS

Drury v. Kent,

Cro. Ja. 14. W. Jones, 375.

Because of
Vicinage..
1 Inst. 122 a.

cattle of a stranger, and keep them on their own land, being there levant and couchant, they may use the common with such cattle; for they have a special property in them.

15. Common appendant or appurtenant for all beasts levant and couchant, cannot be granted over; but common appurtenant for a limited number of beasts may be granted over: and it is said, that in a case of this kind, the commoner may grant over part of the right of common, and reserve the rest to himself.

16. Common because of vicinage is where the inhabitants 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 any molestation from either. This species of common is in fact only a permissive right, intended to excuse what in strictness is a trespass in both; and to prevent a multiplicity of suits: it can only exist between two townships or manors 11 Mod. 72. adjoining one another; not where there is intermediate land.

4 Rep. 38 a.

1 Inst. 122 a.

Corbet's
Case,

7 Rep. 5.

17. Common because of vicinage, is not common appendant; but inasmuch as it ought to be by prescription, from time immemorial, as common appendant, it is in this respect similar to that species of

common.

18. This right of common does not authorize an inhabitant of one township or manor to put his cattle upon the wastes of the other township or manor: but he must put them upon the wastes of his own township or manor, from whence they may escape into the wastes of the other.

19. Common because of vicinage can only be used by cattle levant and couchant upon the lands to

which such right of common is annexed: and if the commons of the towns of A. and B. are adjoining, and there are 50 acres of common in the town of A. and 100 acres in the town of B., the inhabitants of the town of A. cannot put more cattle on their common than it will feed; without any respect to the extent of the common in the town of B., nec è

converso.

1 Inst. 122 a..

20. Common in gross, is a right which must be In Gross. claimed by deed, or prescription, and has no relation to land, but is annexed to a man's person: it may be either for a certain, or for an indefinite number of cattle.

21. Neither common appendant, nor common ap- 1 Roll. Ab. purtenant for cattle levant and couchant, can be turned 401-2. into common in gross: but common appurtenant, for a limited number of cattle, may be granted over; and

by such grant, becomes common in gross..

22. Where a person has common in gross, either Idem. for a certain or for an indefinite number of cattle, he may put in the cattle of a stranger, and use the common with them.

1 Roll. Ab.

23. In many cases the right to common of pasture Stinted Com-is confined to a particular part of the year only; as mons. from Michaelmas to Lady-day; in which case it is 397. called a stinted common. So a person may have a right of common in a meadow, after the hay is carried, till Candlemas; or to common in a pasture, from the feast of St. Augustin till All Saints.

1 Leon. 73.

24. In a case where a man prescribed to have Hawkes v. common appendant, namely, if the land was sown Molyneux, by consent of the commoner, then he was to have no common till the corn was cut, and then to have common again till the land was sown by the like consent of the commoner: it was objected that this pre