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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 inconteftably proved to have exifted at all times in the lord; and no witness had stated in what respect this right had been more exercised latterly than formerly. That fuch a right, as the lord had here exercised, might exift 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 fubjecting him, or those who claimed under him, to fuch an action; although the commoners had been abridged of their enjoyment of fome part of the common.



§ 45. On an application to the Court of Chancery by the tenants of a manor, for an injunction [against 5 Vin. Ab. 7. the leffee of the manor to ftay his digging of brickearth, and making bricks on the common; Lord Chancellor King, affifted by Sir Joseph Jekyll, denied the motion; for that the lord was, of common right, entitled to the foil 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.

$ 46. The

Folkard v.

§ 46. The lord may, with the confent of the

5 Term Rep. homage, grant part of the foil of the common for building; if fuch a right has been immemorially exercised.


Rights of the

1 Roll. Ab. 406.

Bellew v.
Cro. Eliz.


Hadefdon v.
Cro. Jac. 195.

Cooper v.

1 Burr. 259.

Approvement of Comnon.

z Int. 85.

§ 47. With respect to the rights of commoners in cafes of common of pasture, it is fettled, that they have nothing to do with the foil, 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.

5 48. Rabbits are beafts of warren, which a commoner cannot justify killing or driving away, for they are not vermin: and, therefore, the keeping of them by the owner of the foil is lawful.

§ 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.

§ 50. A commoner cannot fill up rabbit burrows, made by the lord in the common; but, if his righta are injured by them, his remedy is by action.

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


any part of his waftes, in which his tenants had formerly enjoyed any right of common; because the common iffued out of the whole wafte, and every part thereof.

$ 52. This inconvenience produced an article in the ftatute of Merton, 20 Hen. 3. c. 4. by which it was enacted, that, when any of the tenants of a manor brought an affize of novel diffeifin 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 egrefs and regrefs from their tenements unto the pasture, they fhould be contented therewith; and they, of whom it was complained, fhould go quit of as much as they had made their profit of their lands, waftes, woods, and pastures. And, if they alleged that they had not sufficient pasture or fufficient ingrefs and egrefs according to their hold, then the truth thereof was to be enquired into by affize: and if it was found as alleged, then they were to recover their seisin by view of the inqueft; and the dif seisors were to be amerced as in other cafes.

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

$ 54. Lord

2 Init. 474.

2 Inft. 476.


$54. Lord Coke obferves, that the word vicinus in this act is taken for a neighbour, though he dwell in another town, fo 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.

$ 55. This ftatute alfo provides that, by occafion of windmills, fheep-cotes, dairies, enlarging of a court, neceffary curtilage, none fhall be grieved by affize of novel diffeifin for common of pafture.

§ 56. Lord Coke obferves, that, by this clause, five kinds of improvement are expreffed, 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 ftatute, or in the ftatute of Merton to the contrary; and that these five are put for examples, for the lord may erect a house for the dwelling of a beast-keeper to take care of the beafts, as well of the lord as of the commoners, and yet it is not within the letter of this law.

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§ 57. His Lordfhip farther obferves, on the word neceffary," that it fhall not be taken according to the quantity of the freehold he hath there, but according to his perfon, eftate, or degree, and for his neceffary dwelling and abode. For if he have no freehold in that town, but his houfe only, yet may he make a neceffary enlargement of his curtilage.

$ 58. In

$58. In a fubfequent cafe, it was held, that the lord cannot erect a house within the statute of Merton, unless it be for his own habitation or his fhepherds: 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 herdfman.

Nevil v.


Sid. 79.

Duberley v.

§ 59. Lord Coke obferves, that throughout all the 2 Inft. 87. ftatute of Merton, the words are pastura et communia paftura; fo that it does not extend to common of pifcary, turbary, or eftovers, or the like: and, in a modern cafe, it was held that the lord has no right under the statute of Merton to inclose and approve the wastes of a manor, where the tenants have a right to dig gravel on the wafte, or to take eftovers there.

§ 60. By the ftatute 3 and 4 Edw. 6 c. 3., the ftatutes of Merton and Westminster are confirmed: and it is further enacted, that where judgment is given for the plaintiffs, in an allize upon any branch of the faid ftatutes of Merton and Westminster 2., the court shall award treble damages.

§ 61. It was formerly doubted, whether, in the cafe of common appurtenant without number, the lord 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

Page, 2 Term
R. 39.

Anon. 4.
Leon. 41.

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