Page images
PDF
EPUB

Common of
Estovers.

Tit. 3 & 8.

Arundel

v. Steer,

scription was against common right, for it was to prevent a man from sowing his own land, without the leave of another. The whole Court held the prescription good; for the owner of the land could not plow and sow it, where another had the benefit of the common; but in this case both parties had a benefit, for each of them had a qualified interest in the land.

25. By the statute 13 Geo. III. c. 81. § 16, 17, 18, it is enacted, that assessments may be made for the improvement of such commons; that the time of opening and shutting them may be varied by the major part, in number and value, of the owners and occupiers, with the consent of the lord or lady of the manor; and that commons which were formerly open during the whole year, may be shut and unstocked for a time, reserving a portion for such of the commoners as may dissent.

26. Common of estovers, is a right of taking necessary housebote, ploughbote, and hedgebote, in another person's woods or hedges, without waiting for any assignment thereof.

27. We have seen that every tenant for life or years has a liberty of this kind, of common right, in the lands which he holds for these estates, without any express provision of the parties; but this right may also be appendant or appurtenant to a messuage or dwelling-house, by prescription or grant, to be exercised in lands not occupied by the tenant of the house: as if a man grants estovers to another, for the repair of a certain house; they become appurtenant to that house; so that whoever afterwards acquires it, shall have such common of estovers.

28. A person prescribed to have estovers for reCro. Ja. 25. pairing houses, or for building new houses on the land. It was alleged, that the custom was unreason

able, to take estovers for the building of new houses: but all the Court, except Williams, held it to be a good prescription; for one might grant such estovers at that day. Williams held the prescription bad, as it ought only to be for repair of ancient houses.

29. Where a person has common of estovers in a 5 Rep. 25 a. certain wood of another, by view and delivery of the owner's bailiff; if he takes estovers without such view and delivery, he is a trespasser, though he takes less than he was entitled to.

30. Where a person has common of estovers, either 4 Rep. 87 a. by grant or prescription, annexed to his house; though he should alter the rooms or chambers, or build new chimnies, or add to the house, the prescription will continue: but he cannot employ any of the estovers in the parts newly added.

820.

Cro. Ja. 256.

31. If a person has common of estovers, and the Cro. Eliz. owner of the soil cuts down part of the wood, the person entitled to estovers cannot take any part of the timber thus cut down; but must take his estovers out of the residue.

32. Where a person has common of estovers ap- Plowd. 381. purtenant to a house, and he grants the estovers to another, reserving the house to himself; or grants the house to another, reserving the estovers to himself; in either of those cases, the estovers shall not be severed from the house, because they must be spent on the house.

33. Common of turbary, is a right to dig turf upon Common of another's land, or upon the lord's waste. This kind Turbary. of common can only be appendant to a house, not to land; for turfs are to be burned in a house: nor

can it extend to a right to dig turf for sale.

34. In an action of trespass, quare clausum fregit, Valentine et solum fodit, the defendant justified that he and his

v. Penny, Noy, 145.

Wilson v.
Willis,

7 East, 121.

Solme v.
Bullock,

3 Lev. 165.

Common of
Piscary.

1 Inst. 122 a.

Vide Tit. 27.
Common
annexed to
Copyholds.

ancestors, and all those whose estate he had in a certain cottage, had used to have common of turbary to dig and sell ad libitum, as belonging to the said cottage. Adjudged that this was a bad plea, such a right of common being repugnant in itself; for a common appertaining to a house, ought to be spent in the house, and not sold abroad. Judgement accordingly.

35. In a modern case, a custom was pleaded in the manor of Hampstead for all the customary tenants, having gardens, to dig turf on the waste, for making grass-plots, at all times of the year, and as often, and in such quantity as occasion required. The Court of King's Bench held that such a custom was bad in law, as being indefinite, uncertain, and destructive of the common.

36. Where common of turbary is appurtenant to a house, it will pass by a grant of such house with the appurtenances.

37. Common of piscary is a right to fish in the soil of another; or in a river running through another's land. And Lord Coke says, that this kind of right does not exclude the owner of the soil from fishing.

38. Copyholders are not entitled by general custom to common, on the wastes of the manor of which their estates are held. But copyholders in fee or for 6 Rep. 60 b. life, may, by particular custom, have common on the demesnes of the manor.

Foiston's
Case,

4 Rep. 31 b.
6 Rep. 60 b.

39. A copyholder of certain tenements, called Collins, in pleading alleged a custom, that all the tenants of the said tenements called Collins, had used to have common in such a place, parcel of the said manor; and if the custom might be alleged within the manor, and applied to but one single copyhold, was demurred in law.

Case,

Adjudged, that such custom, as well for the form as for the matter of it, was good. For first, the copyholder, in his own name, could not prescribe, for the weakness of his estate; but if he could prescribe, he ought to do it in the name of the lord of the manor; to say, that the lord of the manor, and all his ancestors, and all those whose estate he had, had common in such a place, for him and his tenants at will; and that shall serve where the copyholder claimed common or other profits in the soil of a stranger. But when the copyholder claimed common or other profit in the lord's soil, he could not prescribe in the name of the lord; for the lord could not prescribe to have common or other profit in his own soil: but then the copyholder must of necessity allege, that within the manor was such a custom, as in this case. 40. Where copyholders for life, according to the Swayne's custom, have used to have common in the wastes of the lord of the manor, or estovers in his woods, or any other profit apprender in any part of the manor; and afterwards the lord aliens the waste or woods to another in fee; if the lord grants copyholds for lives, the grantees will be entitled to common of pasture, or common of estovers, notwithstanding the severance: for the title of the copyholder is paramount to the severance, and the custom unites the common or estovers, which are but accessaries or incidents, as long as the lands, being the principal, are maintained by the custom; and these customary appurtenances are not derived from the estate of the lord, for he is the owner of the freehold and inheritance of the manor, but they are appertaining to the customary estate of the copyholder, after the grant made to him, which is preserved by the custom, and is paramount to the severance.

8 Rep. 63.

Worledge v.
Kingwell,
Cro. Eliz.

794.

A Right to Common cannot be devested.

5 Rep. 124 a.

Common may be

Case,
4 Rep. 36.

41. If a copyhold, to which common belonged, escheats, and the lord regrants it with all common appendant, the grantee shall have common; for although the ancient common be extinct, yet there was a new grant.

42. A right to common being incorporeal, and collateral to the land, cannot be devested. For though a person entitled to a right of common be not in the actual enjoyment of it, yet by non user only for a time, he does not cease to have a vested estate or interest therein.

43. Common of pasture, where it is appendant, may be apportioned; because it is of common right. apportioned. Tyrringham's Therefore, if the commoner purchases part of the land in which he has a right of common, the common shall be apportioned; as if the lord purchases a parcel of the tenancy, the rent shall be apportioned. Tit. 28. c. 3. So if A. has common appendant to 20 acres of land, and enfeoffs B. of part thereof, the common will be apportioned; and B. shall have common pro rata. In such case no prejudice is done to the tenant of the land where the common is to be had; for he will not be charged with more, upon the whole, than he was before the severance.

Idem.

44. In the case of common appurtenant, if the 1 Inst. 122 a. person entitled to it purchases part of the land, wherein the common is to be had, there shall be no apportionment; because common appurtenant is against common right. But this kind of common shall be apportioned by alienation of part of the land to which it is appurtenant.

Wild's Case, 8 Rep. 78.

45. One Wild being seised of a messuage and 40 acres of land at Croydon, to which a right of common of pasture was appurtenant, on 200 acres of land at Norwood, for all commonable cattle levant and

« PreviousContinue »