CH. 2, s. 4. stat. 23 & 24 Vict. c. 93, ss. 20, 31-33, 35-39, power is PART I. T. 2 given to redeem tithe rent charges in certain cases. 114. of tithe rent Jurisdiction Commuta missioners. Under the Tithe Commutation Act, 6 & 7 Will. 4, c. 71, charges. the Commissioners were only intended to decide disputes of the Titho between the landowner and the tithe owner, leaving the tion Comdecision of disputes as to title between rival claimants of the tithe to be decided by the regular tribunals of the country (k). 115. SECTION V. Of Commons. Common is a right or privilege to take or use some PART I. T. 2 CH. 2, 8. 5. portion of that which another's lands, waters, woods, &c., Definition. produce (1). It is chiefly of four sorts: common of pasture, chiefly of of piscary, of turbary, and of estovers (m). 115a. four sorts. pasture. I. The most general and valuable kind of common is common of that of pasture, which is a right a person has of feeding his beasts in another's lands. This kind of common is of four kinds: appendant, appurtenant, because of vicinage, or in gross (n). 116. appendant. 1. Common appendant is a right annexed to the posses- Common sion of land within a manor, by which the owner or occupier of such land is entitled to feed his beasts upon the wastes and upon the lands of other persons within the same manor (o). It can only be claimed by prescription (p), Claimed by not by grant or by way of custom (2). It is regularly tion. (k) The Queen v. The Tithe Com missioners, 15 A. & E. 633. (1) 3 Cruise T. 23, § 1. (m) 2 Bl. Com. 32. (n) Co. Litt. 122 a; 3 Cruise T. 23, § 2; Burton, § 1133; 2 Bl. Com. 33. (0) 3 Cruise T. 28, § 3; Burton § 1133; 2 Bl. Com. 33. (p) See Title on Prescription, infra, Part II. Tit. 5. (2) 3 Cruise T. 25, § 4; Burton, § 1143; Co. Litt. 122 a, n. 2, 4. prescrip CH. 2, s. 5. To what it For what creatures. PART I. T. 2, annexed to arable land only. Yet it may be claimed as appendant to a manor, farm, or carve of land, though it is annexed. contain pasture, meadow, and wood; for it will be presumed to have been all originally arable. But a prescription to have common appendant to a house, meadow, or pasture, is void. It may, however, be appendant to a cottage; for a cottage has at least a curtilage annexed to it (r). It can only be claimed for such animals as are necessary to tillage; as horses and oxen to plough the land, and cows and sheep to manure it. It may by usage be limited to any definite number of cattle. But where there is no such usage, it is restrained to cattle levant and couchant upon the land to which the right of common is appendant; and the number of cattle which are allowed to be levant and couchant is ascertained by the number of cattle which can be maintained on the land during the winter (s). Such animals being absolutely necessary for agriculture, this right of common for them was annexed by law as an inseparable incident to the grant of land within a manor (†). 117. It is of common right. Common appurtenant. How claimed. To what annexed. For what creatures. 2. Common appurtenant does not arise from any connexion of tenure, but must be claimed by grant or prescription, and may be annexed to lands lying in different manors from those in which it is claimed, and to any kind of land. It may be not only for beasts usually commonable, such as horses, oxen, and sheep, but likewise for goats, swine, &c. And it may be either for a definite or an indefinite number; but where it is for an indefinite number, it is restrained to animals levant and couchant on the land to which it is annexed (u). But common for animals levant and couchant cannot be claimed by pre (r) 3 Cruise, T. 23, § 5, 6. (s) 3 Cruise T. 23, § 8, 9; Co. Litt. 122 a; Burton, § 1133, 1136; 2 Bl. Com. 33. (t) 2 Bl. Com. 33; Co. Litt. 122 a. (u) 3 Cruise T. 23, § 10, 11; Burton, § 1135, 1136, 1137; 2 Bl Com. 33; Co. Litt. 122 a, and n. 4. CH. 2, s. 5. scription as appurtenant to a house without any curtilage PART I. T. 2, or land (). 118. Against right. Common appurtenant is against common right (y). 119. common Common appendant or appurtenant for all beasts levant and couchant cannot be granted over. But common When comappurtenant for a limited number may be granted over, and when granted over, it becomes common in gross (2). 120. mon may be granted over. because of 3. Common because of vicinage is a mutual right arising Common by prescription, in the inhabitants of adjoining townships vicinage. or manors, of suffering their cattle to stray into each other's fields without molestation, until either of them shall inclose and exclude the other (a). This species of common is, in fact, only a permissive right intended to excuse what in strictness is a trespass in both, and yet an almost unavoidable trespass, and to prevent a multiplicity of suits. And hence, in the first place, it can only exist between two townships or manors adjoining one another, not where there is intermediate land: secondly, it does not authorise 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 stray into the wastes of the other (b): and, thirdly, it can only be used by cattle levant and couchant upon the lands to which such right of common is annexed (c). 121. gross. 4. Common in gross is a right which must be claimed Common in by deed or prescription, and has no relation to land, but is annexed to a man's person (d). (x) 3 Cruise T. 23, § 12. (y) 3 Cruise T. 23, § 43. (z) 3 Cruise T. 23, § 14, 20; Burton, § 1137. (a) 2 Bl. Com. 33; 3 Cruise T. 23, § 15, 16, 67; Burton, § 1134; Co. Litt. 122 a. 122. (b) 3 Cruise T. 23, § 17; Co. Litt. 122 a; Commissioners of Sewers v. Glasse, L. R. 19 Eq. 134. (c) 3 Cruise T. 23, §18. (d) 3 Cruise T. 23, § 19; 2 BI. Com. 34; Co. Litt. 122 a, and n. 5. CH. 2, s. 5. PART I. T. 2, There may be a common in gross for animals levant and couchant; for there may be a grant in gross of common for so many cattle as a certain farm, not in the possession of the grantee, could sustain by its products, with the assistance of the common (e). 123. Common for part of a year. Common of estovers, Common of turbary. In many cases the right to common of pasture 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 (f). 124. II. 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 (g). Housebote is a sufficient allowance of wood to repair or burn in the house, though wood for fuel is sometimes also called firebote; ploughbote and cartbote are wood to be employed in making and repairing instruments of husbandry; and, haybote or hedgebote is wood for repairing hays, hedges, or fences (h). Common of estovers may be appendant and appurtenant to a messuage or dwelling-house by prescription or grant, to be exercised even in lands not occupied by the tenant of the house (¿). Common of estovers is so entire that it cannot be apportioned or divided (j). 125. III. Common of turbary is a right of a person to dig turf on the lord's waste or on some other person's land. This kind of common can only be appendant to a house, not to land; for the turf is to be burned in the house. Nor can it extend to a right to dig turf for sale. Where common of turbary is appendant to a house, it will pass by a grant of such house with the appurtenances (). 126. (e) Johnson v. Barnes, L. R. 7 C. P. 592. (f) 3 Cruise T. 23, § 21. (9) Id. § 24; 2 Bl. Com. 35. (i) 3 Cruise T. 23, § 24, 25. (j) 3 Cruise T. 23, § 46. (k) 3 Cruise T. 23, § 31, 34; 2 Bl. Com. 34. CH. 2, s. 5. Common of IV. Common of piscary is a right to fish in the private PART I. T. 2, waters of another person, or in a river running through another's land (1). This species of common cannot be piscary. apportioned (m). 127. mons. V. There is also a common of foldage, or liberty of Other comfolding sheep on another's ground, and a common of digging for coals, minerals, stones, and the like (n). 128. holders. Copyholders are not entitled by general custom to com- Copymon on the wastes of the manor of which their estates are held; but copyholders in fee or for life may by particular custom have common on the demesnes of the manor (o). 129. The lord of the manor in which there is a right of com- Freehold is mon has the freehold and inheritance in him, and may Rights of exercise every act of ownership not destructive of commoners' rights. And so may any other owner of the soil in which there is a right of common (p). 130. in the lord. the lord or the owner. By the common law, the lord of a manor or the person Inclosure. who is seised in fee of the waste land, could not appropriate to himself, by inclosure or otherwise, any part of the wastes in which there was a right of common, because the common issued out of the whole and every part thereof (q). But by the Statute of Merton and other subsequent statutes, and the construction put upon them, he may inclose as much of the waste as he pleases for tillage and wood ground, provided he leaves common sufficient for such as are entitled thereto. This enclosure, when justifiable, is called "approving," an ancient expression signifying the same as "improving" (r). 131. Wastes have also been and still may be inclosed by (7) 3 Cruise T. 23, § 35; 2 BL. Com. 34. 34. (m) 3 Cruise T. 23, § 46. (n) Co. Litt. 6 a, n. 1; 2 Bl. Com. (0) 3 Cruise T. 23, § 36. (p) 3 Cruise T. 23, § 2, 47. () 2 Bl. Com. 34; 3 Cruise T. |