Drury Cro. Ja. 14. Because of 1 Inst. 122 a. cattle of a stranger, and keep them on their own land, being there levant and couchant, they may use the common with such cattle; for they have a special property in them. 15. Common appendant or appurtenant for all beasts levant and couchant, cannot be granted over; but common appurtenant for a limited number of beasts may be granted over: and it is said, that in a case of this kind, the commoner may grant over part of the right of common, and reserve the rest to himself. 16. Common because of vicinage is where the inhabitants of two townships, which lie contiguous to each other, have usually intercommoned with one another; the beasts of the one straying mutually 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 trespass in both; and to prevent a multiplicity of suits : it can only exist between two townships or manors 11 Mod. 72. adjoining one another; not where there is intermediate land. 4 Rep. 38 a. 1 Inst. 122 a. Corbet's 7 Rep. 5. 17. Common because of vicinage, is not common appendant; but inasmuch as it ought to be by prescription, from time immemorial, as common appendant, it is in this respect similar to that species of common.. 18. 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. 19. Common because of vicinage can only be used by cattle levant and couchant upon the lands to which 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 è converso. 1 Inst. 122 a... 20. 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. 21. Neither common appendant, nor common ap- 1 Roll. Ab. purtenant for cattle levant and couchant, can be turned 401-2.. into common in gross; but common appurtenant, for a limited number of cattle, may be granted over; and by such grant, becomes common in gross. 22. Where a person has common in gross, either Idem. for a certain or for an indefinite number of cattle, he may put in the cattle of a stranger, and use the common with them. 1 Roll. Ab. 397. 23. In many cases the right to common of pasture Stinted Comis confined to a particular part of the year only; as mons. from Michaelmas to Lady-day; in which case it is called a stinted common. So 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. 1 Leon. 73. 24. In a case where a man prescribed to have Hawkes v. common appendant, namely, if the land was sown Molyneux, 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 pre Common of! Tit. 3 & 8. Arundel v. Steer, scription was against common right, for it was to prevent a man from sowing his own land, without the leave of another. The whole Court held the prescription good; for the owner of the land could not plow and sow it, where another had the benefit of the common; but in this case both parties had a benefit, for each of them had a qualified interest in the land. 25. By the statute 13 Geo. III. c. 81. § 16, 17, 18, it is enacted, that assessments may be made for the improvement of such commons; that the time of opening and shutting them may be varied by the major part, in number and value, of the owners and occupiers, with the consent of the lord or lady of the manor; and that 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 dissent. 26. Common of estovers, is a right of taking necessary housebote, ploughbote, and hedgebote, in another person's woods or hedges, without waiting for any assignment thereof. 27. We have seen that every tenant for life or years has a liberty of this kind, of common right, in the lands which he holds for these estates, without any express provision of the parties; but this right may also be appendant or appurtenant to a messuage or dwelling-house, by prescription or grant, to be exercised in lands not occupied by the tenant of the house as if a man grants estovers to another, for the repair of a certain house; they become appurtenant to that house; so that whoever afterwards acquires it, shall have such common of estovers. 28. A person prescribed to have estovers for re25. pairing houses, or for building new houses on the land. It was alleged, that the custom was unreason able, to take estovers for the building of new houses: but all the Court, except Williams, held it to be a good prescription; for one might grant such estovers at that day.. Williams held the prescription bad, as it ought only to be for repair of ancient houses. 29. Where a person has common of estovers in a 5 Rep. 25 a. certain wood of another, by view and delivery of the owner's bailiff; if he takes estovers without such view and delivery, he is a trespasser, though he takes less than he was entitled to. 30. Where a person has common of estovers, either 4 Rep. 87 a. by grant or prescription, annexed to his house; though he should alter the rooms or chambers, or build new chimnies, or add to the house, the prescription will continue: but he cannot employ any of the estovers in the parts newly added. 820. 31. If a person has common of estovers, and the Cro. Eliz. owner of the soil cuts down part of the wood, the Cro. Ja. 256. person entitled to estovers cannot take any part of the timber thus cut down; but must take his estovers out of the residue. 32. Where a person has common of estovers ap- Plowd. 381. purtenant to a house, and he grants the estovers to another, reserving the house to himself; or grants the house to another, reserving the estovers to himself; in either of those cases, the estovers shall not be severed from the house, because they must be spent on the house. 33. Common of turbary, is a right to dig turf upon Common of another's land, or upon the lord's waste. This kind Turbary. of common can only be appendant to a house, not to land; for turfs are to be burned in a house: nor can it extend to a right to dig turf for sale. 34. In an action of trespass, quare clausum fregit, Valentine et solum fodit, the defendant justified that he and his v. Penny, Noy, 145. Wilson v. 7 East, 121. Solme v. 3 Lev. 165. Common of 1 Inst. 122 a. ancestors, and all those whose estate he had in a certain cottage, had used to have common of turbary to dig and sell ad libitum, as belonging to the said cottage. Adjudged that this was a bad plea, such a right of common being repugnant in itself; for a common appertaining to a house, ought to be spent in the house, and not sold abroad. Judgement accordingly. 35. In a modern case, a custom was pleaded in the manor of Hampstead for all the customary tenants, having gardens, to dig turf on the waste, for making grass-plots, at all times of the year, and as often, and in such quantity as occasion required. The Court of King's Bench held that such a custom was bad in law, as being indefinite, uncertain, and destructive of the common. 36. Where common of turbary is appurtenant to a house, it will pass by a grant of such house with the appurtenances. 37. Common of piscary is a right to fish in the soil of another; or in a river running through another's land. And Lord Coke says, that this kind of right Vide Tit. 27. does not exclude the owner of the soil from fishing. 38. Copyholders are not entitled by general custom to common, on the wastes of the manor of which their estates are held. But copyholders in fee or for 6 Rep. 60 b. life, may, by particular custom, have common on the demesnes of the manor. Common annexed to Copyholds. Foiston's 4 Rep. 31 b. 39. A copyholder of certain tenements, called Collins, in pleading alleged a custom, that all the tenants of the said tenements called Collins, had used to have common in such a place, parcel of the said manor; and if the custom might be alleged within the manor, and applied to but one single copyhold, was demurred in law. |