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horfes, oxen, and fheep; but likewife for goats,
fwine, &c.

I Roll. Ab.

§ 9. The right of this kind of common is reftrained
to cattle, levant et couchant on the land to which it is
appurtenant and therefore, if a perfon claims com-
mon by prescription for all manner of commonable cattle 398.
on the land of another, as belonging to a tenement ;
this is a void prescription, because he doth not fay that
it is for cattle, levant et couchant on the land.

§ 10. It has been determined in a modern cafe, that common for cattle, levant et couchant, cannot be claimed by prescription as appurtenant to a houfe, without any curtilage, or land. And Mr. Juftice Buller faid, the only question was, what was meant in former cafes by the words "meffuage" and " cottage," annexed to which, was the right of common claimed. For, in all of them, the court faid, they would intend that land was included therein: and, that it was neceffary there fhould be fome land annexed to the house, was clear, from confidering what was meant by levancy and couchancy: it meant the poffeffion of fuch land as would keep the cattle claimed to be commoned during the winter; and, as many as the land would maintain during the winter, fo many fhould be faid to be levant et couchant.

§ 11. Perfons, entitled to common appendant or appurtenant, cannot, in general, ufe the common but with their own cattle. If, however, they take the cattle of a stranger, and keep them on their own land, being

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Stevens v.

Austin,
2 Mod. 185.

Scholes v.
Hargreaves,
5 Term Rep.

46.

Roll. Ab. 398.

Drury v.
Kent,
Cro. Jac. 14.

W. Jones,
375.

Because of
Vicinage.

there levant et couchant, they may use the common
with fuch cattle for they have a special property in

them.

§ 12. Common, appendant or appurtenant for all beasts levant et couchant, cannot be granted over; but common, appurtenant for a limited number of beafts, may be granted over: and it is faid, that, in a cafe of this kind, the commoner may grant over part of the right of common, and reserve the rest to himself.

S.13. Common, because of vicinage, is, where the inhabitants of two townships, which lie contiguous to each other, have usually intercommoned with one anInft. 122 a. other; the beafts of the one ftraying mutually into the other's fields, without any molestation from either. This species of common is, in fact, only a permiffive right, intended to excuse what, in strictness, is a trefpass in both, and to prevent a multiplicity of fuits. It can only exist between two townships, or manors, adjoining one another, and not where there is intermediate land.

11 Mod. 72.

4 Rep. 38 a.

Inft. 122 a.

S 14. Common, because of vicinage, is not common appendant; but, inafmuch as it ought to be by prescription, from time immemorial, as common appendant ought, it is, in this refpect, resembled to common appendant.

S 15. This right of common does not authorize an inhabitant of one township, or manor, to put his cattle upon the wastes of the other township or manor; but

he

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he must

put them upon

the wastes of his own township or manor, from whence they may escape into the wastes of the other.

§ 16. Common, because of vicinage, can only be Corbet's Cafe, used by cattle, levant et couchant on the lands, to which 7 Rep. 5. fuch right of common is annexed: and, if the commons of the towns of A. and B. are adjoining, and there are 50 acres of common in the town of A. and 100 acres in the town of B, the inhabitants of the town of A. cannot put more cattle on their common than it will feed, without any respect to the extent of the common in the town of B. nec é converfo.

§ 17. Lord Coke fays, that, in the cafe of common pur caufe de vicinage, one may inclose against the other: and, in 27 Eliz., it was refolved, that, where two lords of two feveral manors had two waftes, adjoining parcels of their manors, without inclofure, but the bounds of each were well known; in which wastes, the tenants of each manor had reciprocally common for cause of vicinage, one might inclofe against the other.

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§ 18. Common in grofs is a right, which must be Ia Grofs. claimed by deed or prescription, and has no relation to land, but is annexed to a man's perfon. It may be either for a certain, or for an indefinite, number of cattle.

§ 19. Neither common appendant, nor common 1 Roll. Ab. appurtenant, for cattle which are levant and couchant, 401, 2. VOL. III.

H

can

r Roll. Ab. 402.

Stinted Com

mons.

1 Roll. Ab. 397.

Hawkes v.
Molyneux,

Leon. 73.

* Roll. Ab. 397.

can be turned into common in grofs. But common appurtenant, for a limited number of cattle, may be granted over; and, by fuch grant, becomes common in grofs.

S 20. Where a perfon has a common in grofs, either for a certain, or for an indefinite number of cattle, he may put in the cattle of a ftranger, and ufe the common with them.

S 21. In many cafes, the right to common of pafture is confined to a particular part of the year only; as from Michaelmas to Lady Day; in which case, it is called a Stinted Common.

§ 22. In a cafe where a man prescribed to have common appendant, viz. if the land was fown by confent of the commoner, then he was to have no common till the corn was cut, and then to have common again till the land was fown by the like confent of the commoner; it was objected, that this prefcription was against common right: for it was to prevent a man from fowing his own land without the leave of another. But the whole court held the prescription good; for the owner of the land cannot plough and fow it, where another has the benefit of common: but, in this case, both parties had a benefit, for each of them had a qualified intereft in the land.

§ 23. A perfon may have a right of common in a meadow, after the hay is carried, till Candlemas; or,

to common in a pasture from the feast of St. Auguftin till All Saints.

S 24. By the ftatute 13 Geo. 3. c. 81. f. 16, 17, 18. it is enacted, that affeffments may be made for the improvement of fuch commons, and that the time of opening and shutting them may be varied by the major part, in number and value, of the owners and occupiers of fuch common, with the confent of the lord or lady of the manor. And commons, which were formerly open during the whole year, may be fhut and unstocked for a time, reserving a portion for fuch of the commoners as may diffent.

Eftovers.

§ 25. Common of eftovers is a right of taking ne- Common of ceffary housebote, ploughbote, and hedgebote, in another perfon's woods or hedges, without waiting for any affignment thereof..

We have seen, that every tenant for life or years Tit. 3. f. 10. has a liberty of this kind, of common right in the lands which he holds, without any exprefs provifioni Plowd. 381. of the parties: but this right may alfo be appendant or appurtenant to a meffuage or dwelling-houfe, by prescription, or by grant, to be exercised in lands not occupied by the tenant of the house: as, if a man grants eftovers to another for the repair of a certain houfe, this right becomes appurtenant to that house; so that, whoever afterwards acquires it, fhall have fuch com mon of eftovers.

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