The couchant on the said messuage and 40 acres of land; 46. It was held in the same case, that if a person having a right of common appurtenant to his land, leases part of it, the lessee shall have common for beasts levant and couchant on the land. 47. Common of estovers or piscary cannot be 1 Inst. 164 a. apportioned; and Lord Coke says, if a person has housebote, haybote, &c. appendant to his freehold, they are so entire, that they shall not be divided. Lord. 48. With respect to the several rights of the lord Rights of the or owner of the soil, and the commoners, it is settled, that the lord of the manor, or other owner of the soil, in which there is a right of common, has the freehold and inheritance in him, and may exercise every act of ownership which is not destructive of the rights of the commoners. Therefore, if a person 1 Inst. 122 a. claims by prescription any manner of common in another's land, and that the owner shall be excluded from having pasture, estovers, or the like therein; this is a prescription against law; as contrary to the nature of common: it being implied in the first grant, that the owner of the soil should take his reasonable profit there. But a person may prescribe or allege 2 Roll. Ab. a custom to have and enjoy solam vesturam, from 267. such a day to such a day: whereby the owner of the soil shall be excluded to pasture his cattle there at that time. Hoskins v. 2 Saund. 324. 353. n. 2. 49. In a case which arose in 23 Cha. II. it was resolved, that the copyholders of a manor may have Vide 1 Saund. the sole and several pasture, for the whole year, in the lord's soil; as belonging to their customary tenements: for this does not exclude the lord from all the profits of the land, as he is entitled to the mines, quarries, and trees. 5 Term R. 416. Smith v. Feverell, 2 Mod. 6. Palmer, V. 50. It is laid down by Mr. Justice Buller, that where there are two distinct rights, claimed by different parties, which encroach on each other, in the enjoyment of them; the question is, which of the two rights is subservient to the other, It may be either the lord's right, which is subservient to the commoners; or the commoners, which is subservient to the lord's. In general the lord's is the superior right, because the property of the soil is in him; but if the custon show that it is subservient to the commoners, then he cannot use the common beyond that extent. 51. The lord by prescription may agist the cattle of a stranger on the common; but not otherwise. And in 27 Cha. II. it appears to have been held, that a licence from the lord to a stranger, to put his cattle upon the common, was good; provided there was sufficient common left for the commoners. 52. On an application to the Court of Chancery, 5 Vin. Ab.7, by the tenants of a manor, for an injunction against the lessee of the manor, to stay his digging of brick earth, and making bricks on the common; Lord King, assisted by Sir Joseph Jekyll, denied the motion; for that the lord was of common right entitled to the soil of the waste; and the tenants had only a right to take the herbage by the mouths of their cattle. That the lord had a right to open mines in the waste of a manor, and why not to dig brick earth; especially where the bricks were made for one of the tenants of the manor, and to be employed in building upon the manor. 53. A lord of a manor may dig clay-pits on the common, or empower others to do so, without leaving sufficient herbage for the commoners, if such a right has always been exercised by the lord. Greene, 54. A commoner brought an action against the Bateson v. lessees of the lord, for digging clay upon the common. 5 Term R. It appeared that the herbage of the common was in 411. many places destroyed by this practice: but it also appeared that clay had been dug by the lord on the common, for 70 years preceding, and had been sold by him during that time. The jury found a verdict for the plaintiff; but a new trial was granted. Lord Kenyon said, the only question was, whether the evidence supported the verdict for the plaintiff; and he was clearly of opinion that it did not. It appeared that a few acres of the common had been rendered unproductive to the commoner; but the right of digging for clay in the common was incontestibly proved to have existed at all times in the lord; and no witness had stated in what respect this right had been more exercised latterly, than formerly. That such a right, as the lord had here exercised, might exist in point of law, could not be doubted: for if the lord had always dug on the common, and taken what clay he pleased, without interruption or complaint; and nothing appeared to show that this right was limited to any particular extent; there was no pretence for subjecting him, or those who claimed under him, to such an action; though the commoners had been abridged of their enjoyment of some part of the common. Rights of 1 Roll. Ab. 406. Bellew v. Langdon, Cro. Eliz. 376. Hadesdon v. Grussell, 55. With respect to the rights of commoners, it is settled, that in cases of common of pasture they have nothing to do with the soil, but only a right to take the grass, with the mouths of their cattle. It has therefore been held, that a commoner cannot make a trench or ditch on the common, to let off the water; unless there is a custom to authorize him. 56. Rabbits being considered as beasts of warren, a commoner cannot justify the killing or driving them away, for they are not vermin; therefore the keeping of them by the owner of the soil is lawful. 57. If the lord makes rabbit-burrows in the comCro. Ja. 195. mon, and stores them with rabbits, the commoners cannot justify killing them; for a commoner has nothing to do with the land, but to put in his cattle; and he may not meddle with any thing of the lord's 2 Leon. 201. there. The commoner may however have an action. on the case, if the lord leaves not sufficient common. 203. Kirby v. 1 Burr. 265. 58. A commoner cannot fill up rabbit burrows made by the lord in the common; but if his rights are injured by them, his remedy is by action. 59. It has been held, in a modern case, that if the lord of the manor plants trees on his common, a commoner has no right to abate them. 60. It is said by Lord Mansfield, that the lord, by his grant of common, gives every thing incident to the enjoyment of it, as ingress, egress, &c.; and thereby authorizes the commoner to remove every obstruction to his cattle's grazing the grass which grows upon such a spot of ground; because every such obstruction is directly contrary to the terms of the grant. A hedge, a gate, or a wall, to keep the commoner's cattle out, is therefore inconsistent with a grant, which gives them a right to enter. A 61. In all instances of this kind, the commoner has right to abate and in a case where the lord brought Mason v. Cæsar, an action of trespass, for pulling down hedges, the 2 Mod. 66. defendant pleaded that he had a right of common in the place where, &c., and that the hedges were made upon his common, so that he could not enjoy it as fully as before the Court was of opinion that the defendant might abate the hedges; for thereby he did not meddle with the soil, but only pulled down the erection. 62. By the common law, a lord of a manor could Approvement not appropriate to himself, by inclosure or otherwise, of Commons. any part of his wastes, in which his tenants enjoyed a 2 Inst. 85. right of common; because the common issued out of the whole and every part thereof. 63. This inconvenience produced an article in the Idem. statute of Merton, 20 Hen. III. c. 4., by which it was enacted, that when any of the tenants of a manor brought an assise of novel disseisin for their common of pasture, and it was therein recognized by the justices that they had as much pasture as sufficed to their tenements, together with free egress and regress from their tenements unto the pasture, they should be contented therewith; and they of whom it was complained should go quit of as much as they had made their profit of their lands, wastes, woods, and pastures. If they alleged that they had not sufficient pasture, or sufficient ingress and egress, according to their hold, the truth thereof was to be inquired into by the assise; if it was found as alleged, they were to recover their by view of the inquest, and the disseisors were to be amerced as in other cases. seisin 64. This statute extended only to common append. 2 Inst. 473. ant; but by the statute of Westminster 2. c. 46. it was enacted, that the statute of Merton should bind |