« PreviousContinue »
horses, oxen, and sheep; but likewise for goats,
S 9. The right of this kind of common is restrained to cattle, levant et couchant on the land to which it is appurtenant : and therefore, if a person claims com- Roll. Ab. 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 say that Stevens v.
Austin, it is for cattle, levant et couchant on the land.
2 Mod. 185
6 10. It has been determined in a modern case, that Scholes v.
Hargreaves, common for cattle, levant et couchant, cannot be claim
5 Term Rep. ed by prescription as appurtenant to a house, without 46. any curtilage, or land. And Mr. Justice Buller faid, the only question was, what was meant in former cases by the words “ messuage” and “ cottage,” annexed to which, was the right of common claimed. For, in all of them, the court said, they would intend that land was included therein : and, that it was necessary there should be some land annexed to the house, was clear, from considering what was meant by levancy and couchancy: it meant the possession of such land as would keep the cattle claimed to be commoned during the winter; and, as many as the land would maintain during the winter, so many should be said to be levant et couchant.
$ 11. Persons, entitled to common appendant or 1 Roll. Abo appurtenant, cannot, in general, use the common but with their own cattle. If, however, they take the cattle of a stranger, and keep them on their own land, being 13
there levant et couchant, they may use the common with such cattle: for they have a special property in them.
$ 12. Common, appendant or appurtenant for all Drury v. beasts levant et eouchant, cannot be granted over; but Kent, Cro. Jac. 14. common, appurtenant for a limited number of beasts, W. Jones,
may be granted over : and it is said, that, in a case of 375.
this kind, the commoner may grant over part of the right of common, and reserve the rest to himself.
Because of $ 13. Common, because of vicinage, is, where the Vicinage.
inhabitants of two townships, which lie contiguous to
each other, have usually intercommoned with one an1 Inft. 122 a. other; the beasts of the one straying inutually into the
other's fields, without any molestation from either. This species of common is, in fact, only a permissive right, intended to excuse what, in strictness, is a tres
pass in both, and to prevent a multiplicity of suits. It 11 Mod. 72.
can only exist between two townships, or manors, adjoining one another, and not where there is intermediate land.
4 Rep. 38 a.
S 14. Common, because of vicinage, is not common appendant ; but, inasmuch as it ought to be by prescription, from time immemorial, as common appendant ought, it is, in this respect, resembled to common appendant.
Inst. 122 a.
§ 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 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. such 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 converso.
$ 17. Lord Coke says, that, in the case of common
1 Inst. 122 a. pur cause de vicinage, one may inclose against the other: and, in 27 Eliz., it was resolved, that, where two Smith v. lords of two several manors had two wastes, adjoining How,
4 Rep. 38 b. parcels of their manors, without inclosure, 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 inclose against the other.
S 18. Common in gross is a right, which must be In Gross. claimed by deed or prescription, and has no relation to land, but is annexed to a man's person. It may be either for a certain, or for an indefinite, number of cattle.
$ 19. Neither common appendant, nor common
i Roll. Ab. appurtenant, for cattle which are levant and couchant, 401, 2. VOL. III.
can be turned into common in gross. But commore appurtenant, for a limited number of cattle, may be granted over; and, by such grant, becomes common
r Roll, Ab. 402.
$ 20. Where a person has a common in gross, either for a certain, or for an indefinite number of cattle, he may put in the cattle of a stranger, and ufe the common with them.
§ 21. In many cases, the right to common of palture is confined to a particular part of the year only; as from Michaclmas to Lady Day; in which case, it is called a Stinted Common.
Hawkes v. Molyneux, ş Leon. 73.
S 22. In a case where a man prescribed to have common appendant, viz. if the land was sown by consent 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 sown by the like consent of the commoner ; it was objected, that this prescription was against common right: for it was to prevent a man from sowing 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 interest in the land.
Roll. Ab. 397.
$ 23. A person 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. Augustin till All Saints,
§ 24. By the statute 13 Geo. 3. c. 81. f. 16, 17, 18. it is enacted, that assessments may be made for the improvement of such 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 such common, with the consent of the lord or lady of the manor. And commons, which were formerly open during the whole year, may be shut and unstocked for a time, reserving a portion for such of the commoners as may diffent.
25. Common of estovers is a right of taking ne- Common of cessary housebote, ploughbote, and hedgebote, in an
Estovers. other person's woods or hedges, without waiting for any assignment thereof.
We have seen; that every tenant for life of years Tit. 3. f. io. has a liberty of this kind, of common right in the lands which he holds, without any express provisioni Plowd. 381. of the parties : but this right may also be appendant or appurtenant to a messuage or dwelling-house, 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 house, this right becomes appurtenant to that house ; so that, whoever afterwards acquires it, shall have such common of eftovers.