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Arundel v.
Steer,

§ 26. A perfon prefcribed to have eftovers for reCro. Jac. 25. pairing houses, or for building new houses on the land it was alleged, that the cuftom was unreafonable 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 fuch eftovers at that day. Williams held the prescription bad, as it ought only to be for repair of ancient houses.

5 Rep. 25 a.

4 Rep. 87 a.

Cro. Eliz. 820.

Cro. Jac.256.

Plowd. 381.

§ 27. Where a perfon has common of eftovers in a certain wood of another, by view and delivery of the owner's bailiff; if he take eftovers without fuch view and delivery, he is a trefpaffer, although he takes less than he was entitled to.

§ 28. Where a perfon 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 prefcription continues: but he cannot employ any of the eftovers in the parts newly added.

§ 29. Where a person has common of eftovers, and the owner of the foil cuts down part of the wood, the perfon entitled to eftovers cannot take any part of the timber thus cut down, but must take his eftovers out of the refidue.

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

fhall

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

§ 31. Common of turbary is a right to dig turf upon another's land, or upon the lord's wafte. This kind 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 fale.

Common of
Turbary.
4 Rep. 37 4.

Penny,
Noy 145.

§ 32. In an action of trespass quare claufum fregit, Valentine v. et folum fodit, the defendant juftified that he and his 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; fuch a right of common being repugnant in itself: for a common, appertaining to a house, ought to be spent in the house, and not fold abroad; and judgment was given accordingly.

§ 33. Where common of turbary is appurtenant to a house, it will pafs by a grant of such house, cum pertinentiis.

$ 34. Common of pifcary is a right to fish in the foil of another, or in a river running through another's land. And Lord Coke fays, that communia pifcharia does not exclude the owner of the fail from fishing.

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Apportion

ment of Com

mon.

Anon. Hob.

235

Wild's Cafe, 8 Rep. 78.

* Inft. 164 b.

Rights of the Lord.

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

§ 36. Wyat Wyld, being feifed of a meffuage 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 couchant on the faid meffuage and 40 acres of land, enfeoffed John Wood of five acres thereof. The question was, whether Wood was entitled to common appurtenant to his five acres and it was refolved that he was; and that the alienation of part of the land fhould not destroy the right of common, either of the alienor or alienee, but each shall retain a right of common proportioned to their eftates.

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So, if a perfon, having a right of common appur tenant to his land, leafes part of the land to another, the leffor fhall have common for beafts levant and couchant on the land leafed.

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

§ 38. With refpect to the feveral 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 inheritance

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

$ 39. Lord Coke fays, that, if a man claim by pre- 1 Inft. 123 4. scription any manner of common in another man's land, and that the owner of the land fhall be excluded to have pasture, eftovers, or the like, this is a prefcription or custom against law, to exclude the owner of the foil for it is against the nature of the word common; and it was implied in the first grant, that the owner of the foil fhould take his reasonable profit

there. But a man may prescribe or allege a custom 2 Roll. Ab.
to have and enjoy folam vefturam from fuch a day till 267.
fuch a day, and hereby the owner of the foil shall be
excluded to pasture or feed there; and fo he may have
Separacem pafturam, and exclude the owner of the foil
from feeding there.

Robins,

2 Saund. 324.

Vide

1 Saund. 353

§ 40. In a cafe which arose in 23 Cha. 2. it was Hoskins v. refolved, that the copyholders of a manor may have the fole and several pasture for the whole year in the 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.

1.2.

416.

S 41. It is laid down by Mr. Juftice Buller, that 5 Term 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

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is

1

Smith v.
Feverell,
2 Mod. 6.

Batefon v.
Green,

5 Term Rep.

411.

is fubfervient to the other. It may be either the lord's right which is fubfervient to the commoners, or the commoners which is fubfervient to the lord's. In general, the lord's is the fuperior right; because the property of the foil is in him: but, if the custom fhew, that it is fubfervient to the commoners, then he cannot use the common beyond that extent.

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

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

§ 44. A commoner brought an action against the leffees 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 fold by him during that time.

The jury found a verdict for the plaintiff; but a new trial was granted: and Lord Kenyon obferved, that the only question was, whether the evidence fupported the verdict for the plaintiff, and he was clearly of opinion

that

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