Idem, 474. neighbours, and such as claimed common of pasture, appurtenant to their tenements; but not such as: claimed common by special grant or feoffment, for a certain number, or otherwise. 65. Lord Coke observes, that the word vicinus in this act is taken for a neighbour, though he dwell in another town, so as the towns and commons be adjoining to each other; and if the lord has common in the tenant's ground, the tenant may approve within this act, for there the lord is vicinus. 66. The statute of Westminster 2. also provides, that, by occasion of windmills, sheepcotes, dairies, enlarging of a court, necessary curtilage, none shall be grieved by assize of novel disseisin for common of 2 Inst. 476. pasture. And Lord Coke observes, that here are Idem. Nevill v. five kinds of improvement expressed, that, both be- 67. Lord Coke also observes on the words, necessary curtilage, that they shall not be taken according to the quantity of freehold the lord has there, but according to his person, estate, or degree, and for his necessary dwelling and abode; for if he have no freehold in that town, but his house only, yet may he make a necessary enlargement of his curtilage. 68. In a subsequent case it was held, that the lord cannot by the statute of Merton erect a house, unless it be for his own habitation or that of his shepherd; and he must allege that he built it for one of these purposes otherwise he might build a great house to let to a nobleman, which might require a greater curtilage than the lord's or his herdsman's. Grant v. Gunner, 69. The words of the statute of Merton are, pastura 2 Inst. 87. et communia pasture, so that it does not extend to common of turbary, estovers, piscary, or the like. 1 Taunt. 435. And in a modern case it was held, that the lord of a Duberly manor has no right, under the statute of Merton, to v. Page, inclose and approve the wastes of a manor, where the tenants have a right to dig gravel on the waste, or to take estovers there. 70. By the statute 3 & 4 Edw. VI. c. 3. the statutes of Merton and Westminster are confirmed; and it is further enacted, that where judgement is given for the plaintiffs, in an assize, upon any branch of these statutes, the Court shall award treble damages. 2 Term R.39. 71. It was formerly doubted whether, in the case Anon. 4. of a common appurtenant without number, the lord Leon. 41. might approve; for not being admeasurable, it was not approveable, because the common being without number, sufficiency could not be proved. Dyer and Manwood held, that although the common were with, out number, yet it might be reduced to a certainty, being by prescription; as the number of cattle which the best and most substantial tenant of the said tenement, at any time within the memory of man, had kept upon the waste; and then the lord might approve, leaving sufficient common according to such rate. 72. In the case of common because of vicinage, 1 Inst. 122 a. one may inclose against the other; and in 27 Eliz. it * was resolved, where two lords of two several manors Smith had two wastes, adjoining parcels of their manors, 4 Rep. 38 b. v. How, without inclosure, but the bounds of each were well known, in which wastes the tenants of each manor Fawcett v. Strickland, Com. Rep. 577. 6 Term R. 747. 2 Term Rep. 391, 392. n. Clarkson v. 5 Term R. 412. n. had reciprocally common because of vicinage, that one might inclose against the other. 73. It is laid down by Lord Chief Justice Willes, and the other Judges of the Court of Common Pleas, that although a lord of a manor cannot, by virtue of the statute of Merton, inclose and improve against common of turbary; yet that where there is common of pasture and common of turbary, in the same waste, the common of turbary will not hinder the lord from inclosing against the common of pasture; for they are two distinct rights. 74. Although the custom of a manor authorises the commoners to inclose a part of the waste, under certain circumstances, yet this does not take away the lord's right of approving, under the statute of Merton; provided he leave sufficient common for the tenants. 75. In a modern case, the Court of King's Bench Woodhouse, held that a custom, authorizing the owners of ancient messuages within a manor, to have certain portions of the common called moss dales assigned to them in severalty, for digging turves, and after clearing them of turves, to approve them, and hold them in severalty, discharged from all right of common, was good in law. Folkard v. Hemmett, 5 Term R. 417.n. Shakespear v. Peppin, 6 Term R. 741. 76. In another modern case, it was held by the same Court, that the lord may, with the consent of the homage, grant part of the soil of the common for building, if such a right has been immemorially exercised. A 77. Where commoners have some other right on the common, beside that of pasture, as of digging sand, &c. the lord may notwithstanding approve, if he leave sufficient common of pasture: and if such inclosure be no interruption to the enjoyment of the other kind of common. Gunner, It was, however, laid down Graut v. in a modern case, that there can be no approver in 1 Taunt.435. derogation of a right of common of turbary. Lane, 445. 78. Although the statutes of Merton and West- Glover v. minster speak of the lords of manors, as the only 3 Terin R. persons enabled to approve of commons, yet it has been held, in a modern case, that any person who is seised in fee of a waste within a manor, may approve, leaving a sufficiency of common; for otherwise not half the wastes in the kingdom could be approved; as many of the places that are called manors, would not be found such in point of law, if the matter were strictly examined. And Lord Kenyon observed, that though in the statutes of Merton and Westminster 2, only the lord is mentioned, yet in those days there was a paucity of expression in acts of parliament; for the lord of the manor is put as the owner of the soil, where they stand in the same predicament. And a contrary decision would be ruinous indeed, and extremely prejudicial to the public. 79. The Court of Chancery will assist and protect a lord of a manor, in approving a common under the statute of Merton. 80. There having been an inclosure made out of a Weekes common, with young wood and timber growing. Slake, thereon, and the plaintiff insisting that it was an approvement within the statutes of Merton and Westminster 2, the Court thought fit to continue an injunction which had been granted to him, and directed a trial to be had the next assises, whether sufficient common was left for the tenants. 81. The lord of a manor having inclosed part of a Arthington v. Tawkes, common, and the tenants by force throwing open the 2 Vern. 356. inclosures, brought his bill to quiet him in possession; H S V. Palmer, surmising he had only improved according to the statute of Merton, and had left a sufficiency of common; but that some of the defendants, although they pretended to have a right, were not entitled to intercommon upon the waste in question. Upon the hearing, two issues were directed to be tried at law: 1. As to some of the defendants, whether they had a right of common. 2. Whether there was sufficient common left, beyond what was inclosed. But the injunction was continued in the mean time, although it was a new inclosure, and made not above two years before the bill exhibited. 82. Upon a bill brought in Chancery by the tenants 5 Vin. Ab. 7. of a manor, against the lessee of the lord, to establish their right of common of pasture, and for an injunction against the defendant, for inclosing part of the common, Lord King, assisted by Sir Joseph Jekyll, denied the motion; for, by the statute of Merton, the lord might inclose part of the waste, leaving sufficient common. That at common law, in an action brought against the lord, the tenant must allege in the declaration, that there is not sufficient common left, or he cannot maintain the action: and if that should be the case, the tenants might have their remedy at common law; and it was too soon for an injunction before answer. Inclosure of 83. The approvement of commons having been found to be extremely beneficial to the public, by increasing tillage and agriculture, it was enacted by the statute 29 Geo. II. c. 36. § 1., that it shall be lawful for his Majesty, his heirs and successors, and all other owners of wastes, woods, and pastures, wherein any persons or bodies politic have right of common of pasture, by and with the assent of the major part in num ber and value of the owners and occupiers of the tene 5 |