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Arundel v. § 26. A person prescribed to have estovers for reCro. Jac. 25. pairing houses, or for building new houses on the

land : it was alleged, that the custom was unreasonable to take eftovers for the building of new houses : all the court, except Williams, held it to be a good prescription, for one might grant such eftovers at that day. Williams held the prescription bad, as it ought only to be for repair of ancient houses.

5 Rep. 25a.

$ 27. Where a person has common of estovers in a certain wood of another, by view and delivery of the owner's bailiff; if he take estovers without such view and delivery, he is a trespasser, although he takes less than he was entitled to.

4 Rep. 87 a.

$ 28. Where a person has common of eftovers, either by grant or prescription, annexed to his house, although he alters the rooms and chambers, or builds new chimnies, or adds to the house, yet the prescription continues : but he cannot employ any of the eltovers in the parts newly added.

Cro. Eliz,

S 29. Where a person has common of estovers, and 820. Cro: Jac.256. the 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 eftovers out of the residue.

Plowd. 381.

$ 30. Where a person has common of eftovers appurtenant to a house, and he grants the eftovers to another, reserving the house to himself; or, the house to another, reserving the estovers to himself, the estovers

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fhall not be thereby severed from the house; because they must be spent on the house.

$ 31. Common of turbary is a right to dig turf upon Common of

Turbary. another's land, or upon the lord's waste. This kind

4 Rep. 37 a. of common can only be appendant to a house, and not to land : for turfs are to be burned in a house; nor can it extend to a right to dig turf for sale.

$32. In an action of trespass quare claufum fregit, Valentine v.

Penny, et folum fodit, the defendant justified that he and his

Noy 145. ancestors, and all those, whose estate he had in a certain cottage, had used to have common of turbary to dig and fell ad libitum, as belonging to the faid cottage.

It was 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; and judgment was given accordingly.

S 33. Where common of turbary is appurtenant to Solme v.

Bullock, a house, it will pass by a grant of such house, cum

3 Lev. 165. pertinentiis.

$ 34. Common of piscary is a right to fish in the

Common of foil of another, or in a river running through an- Piscary.

i Inst. 122 a. other's land. And Lord Coke fays, that communia n.7.

Vide Tit. 37 pischaria does not exclude the owner of the fail from fishing

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Apportionment of Com

$ 35. Common of pasture, whether appendant of appurtenant, may be apportioned upon the alienation of the land, to which such common belongs.

mon,

Anon. Hub. +35

Wild's Cafe, 8 Rep. 78.

S 36. Wyat Wyld, being feised 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 af Norwood for all commonable cattle, levant and couchant on the said messuage and 40 acres of land, enfeoffed John Wood of five acres thereof. The question was, whether Weed was entitled to common appurtenant to his five acres : and it was resolved that he was; and that the alienation of part of the land should not destroy the right of common, either of the alienor or alienee, but each shall retain a right of common proportioned to their estates.

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So, if a person, having a right of common appur, tenant to his land, leases part of the land to another, the lessor shall have common for beasts levant and couchant on the land leased.

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Inst. 1646.

$ 37. Common of eftovers or piscary cannot be apportioned ; and, therefore, Lord Coke says, that if a person has house-bote, hay-bote, &c. appendant to his freehold, they are so entire, that they fhall not be divided.

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Rights of the Lord

§ 38. With respect to the several rights of the lord and of the commoners in the common, it is held, that the lord of the manor or owner of the foil, in which there is a right of common, has the freehold and in

heritance

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beritance of the land ; and the commoner has only a special and limited interest in the soil, amounting only to a right to feed his cattle, cut timber, dig turf, &c. in it.

$ 39. Lord Coke says, that, if a man claim by pre- i Inst. 129 4. fcription any manner of common in another man's land, and that the owner of the land shall be excluded to have pasture, eftovers, or the like, this is a prescription or custom against law, to exclude the owner of the soil : for it is against che nature of the word common; and it was implied in the first grant, that the owner of the soil Thould take his reasonable profit there. But a man may prescribe or allege a custom 2 Roll. Ab. to have and enjoy folam vesturam from such a day till

267. such a day, and hereby the owner of the soil shall be excluded to pasture or feed there; and so he may have separacem pasturam, and exclude the owner of the soil from feeding there.

$ 40. In a case which arose in 23 Cha. 2. it was Hofkins v.

Robins, resolved, that the copyholders of a manor may have

2 Saund. 324 the sole and several pasture for the whole year in the Vide

Saund. 353 lord's foil, 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.

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416,

S 41. It is laid down by Mr. Justice Buller, that 5 Teru Rep. 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 custom shew, that it is subfervient to the commoners, then he cannot use the common beyond that extent,

Smith v
Feverell,
2 Mod. 6.

§ 42. The lord, by prefcription, may agift the cattle of a stranger on the common, but not otherwise. And, in a modern case, it seems to have been held, that a licence from the lord to a stranger, to put his cattle upon the common, is good; provided there be sufficient common left for the commoners.

$ 43. A lord of a manor may dig clay pits on the common, or empower others to do so, without leaving fufficient herbage for the commoners, if such a right has always been exercised by the lord.

Bateson V.
Green,
5 Term Rep.
411.

§ 44. A commoner brought an action against the lessees of the lord, for digging clay upon the common. It appeared, that the herbage of the common was in 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 verdi&t for the plaintiff; but a new trial was granted : and Lord Kenyon observed, that the only question was, whether the evidence supported the verdict for the plaintiff , and he was clearly of opinion

that

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