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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 incontestably 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 fhew 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 ; although the commoners had been abridged of their enjoyment of fome part of the common.

V.

{against Palmer,

5 Vin. Ab.7

S 45. On an application to the Court of Chancery by the tenants of a manor, for an injunction against the lessee of the manor to stay his digging of brickearth, and making bricks on the common; Lord Chancellor 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 mouth of their cattle. That the lord has 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.

S 46. The

Folkard v. S 46. The lord. may, with the consent of the Hemmett, 5 Term Rep. homage, grant part of the soil of the common for 417.1. building; if such a right has been immemorially ex.

ercised.

Rights of the
Commoners.

§ 47. With respe&t to the rights of commoners in cases of common of pasture, it is settled, that they have nothing to do with the soil, but only a right to take the grass with the mouths of their cattle ; and, therefore, it has 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.

, Roll. Ab.

406.

Bellew v. Langdon, Cro. Eliz. 376.

S 48. Rabbits are beasts of warren, which a comnoner cannot justify killing or driving away, for they are not vermin: and, therefore, the keeping of them by the owner of the soil is lawful.

Hadeldon v.
Gryffell,
Cro.Jac. 195

§ 49. If the lord makes rabbit burrows in the com 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 there.

Cooper v.
Marihall,
1 Burr. 359

$ 50. 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.

Approvement of Comnon, 1 Ipit. 85.

$ 51. By the common law, a lord of a manor could not appropriate to himself, by inclosure or otherwise, ,

any

any part of his wastes, in which his tenants had formerly enjoyed any right of common; because the common issued out of the whole waste, and every part thereof.

$ 52. This inconvenience produced an article in the statute of Merton, 20 Hen. 3. C. 4. by which it was enacted, that, when any of the tenants of a manor brought an afsize of novel diffeisin for their common of pasture, and it was therein recognized by the justices, that they had as much pasture as sufficed to their tenements, and that they had 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. And, if they alleged that they had not sufficient pasture or sufficient ingress and egress according to their hold, then the truth thereof was to be enquired into by assize: and if it was found as alleged, then they were to recover their seisin by view of the inquest; and the dis. seisors were to be amerced as in other cases.

$53. This statute extended only to common appen. 4 Inft. 472. dant; but by the statute of Westminster 2. C. 46. it is enacted, that the statute of Merton shall bind neighbours, and such as claim common of pasture appurtepant to their tenements, but not such as claim common by special grant or feoffment for a certain number or otherwise,

$ 54. Lord

2 Init. 474.

S 54. Lord Coke observes, that the word vicinus in this act is taken for a neighbour, though he dwell in another town, so the towns and commons be adjoining to each other. And, if the lord hath the common in the tenant's ground, the tenant may approve within this act; for there the lord is vicinus.

S 55. This statute also provides that, by occasion of windmills, sheep-cotes, dairies, enlarging of a court, necessary curtilage, none shall be grieved by allize of novel disseisin for common of pasture.

2 Inst. 476.

S 56. Lord Coke observes, that, by this clause, five kinds of improvement are expressed, that may be done between lord and tenant, and neighbour and neighbour, without leaving sufficient common to those who had it:

any thing in this statųte, or in the statute of Merton to the contrary; and that these five are put for examples, for the lord may erect a house for the dwel. ling of a beast-keeper to take care of the beasts, as well of the lord as of the commoners, and yet it is not within the letter of this law,

Id.

S 57. His Lordship farther observes, on the word “ neceffary," that it shall not be taken according to the quantity of the freehold he hath there, but accord. ing to his person, eftate, or degree, and for his necefsary dwelling and abode. For if he have no freehold in that town, but his house only, yet may he make a neceffary enlargement of his curtilage.

$ 58. In

S 58. In a subsequent case, it was held, that the Nevil v.

Hammerton, lord cannot erect a house within the statute of Merton, Sid. 79. unless it be for his own habitation or his shepherds : and he must allege, that he built it for one of these purposes; for, otherwise, he may build a great house to let to a nobleman, which may require a greater curtilage than the lord or his herdsınan.

S 59. Lord Coke observes, that throughout all the 2 Inft. 87. statute of Merton, the words are pastura et communia pasture ; so that it does not extend to common of pilcary, turbary, or eftovers, or the like: and, in a Duberley v. modern case, it was held that the lord has no right R. 39.

Page, 2 Term under the statute of Merton to inclose and approve the waltes of a manor, where the tenants have a right to dig gravel on the waste, or to take eftovers there.

$ 60. By the statute 3 and 4 Edw. 6 c. 3., the statutes of Merton and Westminster are confirmed: and it is further enacted, that where judgment is given for the plaintiffs, in an alize upon any branch of the said statutes of Merton and Westminster 2., the court shall award treble damages.

S 61. It was formerly doubted, whether, in the case Anon. 4. of common appurtenant without number, the lord Leon. 41. might approve : for, not being admeasurable, it was not approveable; because, the common being without number, fufficiency could not be proved. Dyer and Manwood held that, although the common were without number, yet it might be reduced to a certainty, being by prescription : as the number of cattle, which

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