« PreviousContinue »
other profit iffuing out of the fame land, there the rent common and profit is extinct.
§ 78. In trefpafs for breaking his clofe in Abney, the Bradshaw v. defendant pleaded that long before, &c. one Bradfhaw was feifed of the place where, &c. in fee; and 570. that one Fuljamb was feifed in fee of a house and twenty acres of land in Abney aforefaid, and that the faid Fuljamb, and all they whose estate, &c. had common in the faid place where &c.; and that the said Fuljamb enfeoffed of the faid tenement the faid BradShaw, and that afterwards the said Bradshaw let unto the defendant the faid houfe, and twenty acres of land, with all commons, profits, and commodities thereto appertaining or used with the faid meffuage; and thereby juftifies putting in his cattle to use the common, &c.
It was therefore demurred; and it was held clearly that his common was extinguished by the unity of poffeffion, and could not be revived again: and Gawdy Just. said it was the fame of common appendant.
§ 79. Where the abbot of D. was feifed of a com- Nelfon's Cafe, mon out of the abbey of S. as appurtenant to certain 3 Leon. 128. lands of the abbey of D.: afterwards both those abbies were diffolved, and the poffeffion of both were given to the king, to hold in as ample a manner as the abbots held them. Afterwards, the king granted the lands of one abbey to A. and of the other abbey to B. It was determined that the words "in as ample a manner" &c. were to be conftrued according to law, and
Rex v. Inha
no further; and that the unity of poffeffion in the king had extinguished the common.
80. To conftitute fuch an unity of poffeffion, as will extinguish a right of common, the perfon must have an estate in the lands to which the common is annexed, and in those, where the right of common exists, equal in duration and all other circumstances of right.
§ 81. A right of common was appendant to certain tenements, which were parcel of the abbey of Sarum, in a common, that was parcel of the dutchy of Cornwall: Upon the diffolution of the abbey of Sarum, these tenements became vested in king Hen. 8. in fee; in whom the dutchy of Cornwall was then vested for want of a duke of Cornwall. It was refolved by Lord Chief Justice Holt, and the reft of the judges, that this was not fuch an unity of poffeffion as would destroy the right of common; because king Henry 8. had not as perdurable an eftate in the one as in the other. For, in the dutchy of Cornwall the king had only a fee, determinable on the birth of a duke of Cornwall, which was a bafe fee; but, in the tenements in Hermitage, he had a pure fee-fimple, indeterminable jure corona.
§ 82. A parfon had common appendant to his parfonage in the lands of an abbey; and afterwards the abbot had the parfonage appropriated to him and his fucceffors. By Windham and Meade contra Dyer, the abbot had not as perdurable an estate in the one as in
the other for the parfonage might be difappropriated; and then the parfon would have the common again.
§ 83. 7. S. was feifed of 100 acres of land, and had common appurtenant in 46 acres, two of which were in the occupation of A. and the other 44 of B.; and he purchased the two acres in the occupation of A. It was refolved that the whole right of common was extinct by this purchase.
§ 84. Where the lord approves a part of the waste, and afterwards one of the commoners purchases the part fo approved, this will not extinguish his right of common; becaufe, by the approvement, the land was utterly discharged of common.
§ 85. Where a perfon, having common appurte- 8 Rep. 79 a. nant, takes a lease, for life or years, of part of the 9 Rep. 135 a. land in which he has fuch right of common; all his common fhall be fufpended during the continuance of fuch lease because it is the folly of the commoner to intermeddle with the land, over which he has the right of common.
§ 86. Where a right of common is annexed to a' copyhold eftate, and the lord grants and confirms the land to the copyholder and his heirs, cum pertinentiis, the common is extinguifhed, because it was annexed to the customary estate; which, being destroyed and converted into a freehold, the right of common is extinguished: and the words "cum pertinentiis" will not have the effect of continuing it; because this right of
Cro. Jac. 253-
1 Salk. 366. 6 Mod. 20.
common was not appurtenant to the freehold eftate, granted by the lord.
§ 87. This doctrine, however, appears not to be allowed in equity: for, where the lord of a manor enfranchifed a copyhold, with all common thereto belonging or appertaining, and afterwards bought in all the copyholds, and then disputed the right of common with the copyholder he had enfranchised, and at law recovered against the plaintiff, because the prefcription of common to the copyhold was destroyed by the enfranchisement; and the grant of the copyhold, with the common thereto belonging, gave no right of common; because, when enfranchised, no common in point of law belonged to it: The court decreed, that the plaintiff fhould hold and enjoy against the defendant the fame right of common, which belonged to the copyhold, and costs.
§ 88. But, where a copyholder claims common out of the manor, it belongs to the land and not to the estate in the land: and, therefore, an enfranchisement of the copyhold will not extinguish the common.
§ 89. So, if a copyholder of one manor has common in the wastes of another manor, he must prescribe in the name of his lord, and fay that the lord of the manor, whereof he is copyholder, ufed time out of mind to have common for him and his copyholders: and there enfranchisement of copyhold does not extinguish the common; for it is a derivative right, which the copyholder has: and fo, if it be taken as appendant to land, enfranchisement will not extinguish it.
$ 90. A common, which has been extinguished by Common may unity of poffeffion, may be revived by a new grant.
$91. Thus, in the cafe of Bradshaw v. Eyre, the Ante, f. 78.
court held, that the words of the leafe "all commons,
profits, &c. occupied or ufed with the faid mef "fuage," &c. operated as a grant of a new right of common for the time: for, although it was not common in the purchafer's hands, yet it was quafi common, used therewith; and, though not the fame common, as was used before, yet it was the like common.
§ 92. Where common appurtenant to a meffuage, was extinguished by unity of poffeffion in the lord's hands; it was held, that a grant by the lord of the meffuage with all common appurtenant did not pass the common extinct; but, that a grant of all commons, ufually occupied with the faid meffuage, would have paffed fuch common as the first was.
§ 93. Where a copyhold messuage, to which common in the lord's demefnes belonged, efcheated to the lord; who granted it with all commons thereto belonging, or used therewith: It was adjudged, that this enured as a new grant of the common.
S 94. Where a perfon had common in grofs, which was derived from the abbot of W. and was de
troyed by unity of poffeffion in the crown, with the lands in which the common was; and the crown granted the lands, to which the common belonged, with the words tot, tanta, talia, libertates, privilegia,
W. Jones 285.