present time, the term, "lord of the manor" must be considered as equivalent to "owner of the soil," where they stand in the same predicament. It is not necessary, therefore, that the person approving should be lord of the manor (n); a seisin in fee of the waste, &c. is sufficient. It is worthy of remark, that the statute of Merton does not empower the lord to approve against any other right of common (o), except that of common of pasture, appendant or appurtenant. It does not extend to common in gross (p), the words of the statute being quantum pertinet ad tenementa sua, nor to common of piscary, of turbary (9), estovers, and the like, the words used throughout the statute being pastura et communia pasturæ (r). But though the lord cannot approve against common of turbary, yet where there is common of pasture, and common of turbary in the same waste (s), the common of turbary will not prevent the lord from justifying an inclosure against the common of pasture, if he leaves sufficient; for they are two distinct rights, and the concurrence of these rights in one person will not make any difference. In like manner the lord of the manor (t), or his grantee, may justify an approvement or inclosure against tenants having common of pasture, although they have a further right of digging sand, &c., if sufficient common of pasture be left. It is, however, observable (u), that if the inclosure operates as an injury to the other rights, the commoner will be entitled to an action on the case for such injury. By the approvement of part, agreeably to the rule laid down in the statute of Merton, that part is discharged of the common, insomuch, that if the tenant who has the common purchases that part, his common is not extinguished in the residue (v). If the lord incloses any part, and does not leave sufficient common in the residue, the commoner may break down the whole inclosure (w). But if the common has been inclosed twenty years, the commoner cannot make an entry, and [before the stat. 3 & 4 Will. IV. c. 27,] must have brought an assize of common (x). A custom for the lord to inclose without limit (y) is bad, as tending to destroy the rights of the commoner altogether, but a custom to inclose, (even as against a common right of turbary,) leaving sufficiency of common, is good; but the onus of proving a sufficiency left lies on the lord (2).

(v) 2 Inst. 87.

(w) 2 Inst. 88, recognized in Arlett v. Ellis and others, 7 B. & C. 346.

(x) Creach v. Wilmot, Derby Summ. Ass. 1752, cited by Lawrence, J., in Hawke v. Bacon, 2 Taunt. 160. But see Tapley v. Wainwright, 5 B. & Ad. 395; 2 Nev. & M. 697.

(y) Badger v. Ford, 3 B. & A. 153. (z) Arlett v. Ellis, 7 B. & C. 346.

By stat. 29 Geo. II. c. 36, the lords and tenants may inclose part of the common for the purpose of planting and preserving trees fit for timber or underwood. And by stat. 31 Geo. II. c. 41, these power sare declared to be vested in tenants for life or years determinable on lives. And by stat. 6 & 7 Will. IV. c. 70, s. 1, lord of manors may convey any part of commons or wastes as sites for poor schools.

IV. Of the Remedy for Disturbance of Right of Common.

WHATEVER destroys the right of common is a nuisance (a), and may be abated by the commoner, provided it can be done without interfering with the lord's right to, or interest in, the soil. But if the nuisance cannot be abated, without such interference, the commoner must resort to his action on the case, and have satisfaction in damages. If the right of common be partially injured, the commoner ought not to abate the cause of such injury, more especially if in so doing he must necessarily interfere with the right to the soil. On this principle it was holden, in Cooper v. Marshall, 1 Burr. 265, that a commoner could not justify digging up the soil and destroying the coney-burrows erected in the common by the lord, who was entitled to free warren there. where the lord had planted trees on the common, and the commoner cut them down (b), it was holden, that the lord might maintain trespass, and that the commoner could not justify the abatement of the trees.

So

The usual remedy adopted by commoners is an action on the case for a disturbance of the right of common, which may be maintained either against the lord or the owner of the soil (c), a stranger, or a commoner. If the action is brought against the wrong-doer (d), title being only inducement, it is not necessary to set it forth; it will be sufficient for the plaintiff to state in his declaration, that he was possessed of a certain quantity of land, &c., and by reason of such possession was entitled to the right, in the exercise of which he was disturbed. In this action the plaintiff must prove an injury sustained, but any injury in the minutest degree is sufficient (e); e. g. the taking away the manure which has been dropped on the common by the cattle, although the pro

(a) 2 Inst. 88.

(b) Kirby v. Sadgrove, 6 T. R. 483, B. R., confirmed in error in Exch. Cha. 1 Bos. & Pul. 13.

(e) Hassard v. Cantrell, Lutw. 101.

See

(d) Strode v. Byrt, 4 Mod. 418. also Greenhow v. Ilsley, Willes, 621. (e) Per Lord Ellenborough, C. J., Lidgold v. Butler, Middlesex Sittings after Trin. 48 Geo. III. B. R. MSS.

66

portion of the damage sustained by the plaintiff be found to amount to a farthing only (ƒ); for if, where the injury was small, a commoner could not maintain an action, a mere wrong doer might by repeated torts in course of time establish evidence (g) of a right of common. If, to an action on the case by a commoner for injuring his right of common (), the defendant plead, that he dug turves under a license from the lord, he should add, that sufficient common was left for the commoner;" and if he do not, the plaintiff is not obliged to reply, that there was not sufficient common left; because it is the gist of the action, and set forth in the declaration. Case for disturbing the plaintiff's right of common by turning on cattle on divers days and times. Defendant pleaded a right of common in himself and justified turning on the cattle, being his own commonable cattle levant and couchant on his land. Plaintiff must new assign (i), if he intends to prove a surcharge.

V. Of Surcharges by Commoners.

FORMERLY, if one of the commoners had surcharged the common (j), that is, had put more cattle into the common than he was entitled to, the commoner who was aggrieved might sue out a writ of admeasurement of pasture, and by that suit the common was admeasured in respect of all the commoners, as well those who had not surcharged as those who had surcharged it, and the person who brought the action. An action on the case has been substituted in the place of this writ of admeasurement, as a more easy and speedy remedy; and it has been holden, that this action may be maintained by one commoner against another for a surcharge (k), although the plaintiff himself has been guilty of a surcharge. In the declaration, it is not necessary for the plaintiff to set forth the defendant's right of common, and show in what manner he has exceeded that right (1), by putting in a greater number or an improper species of cattle; but the disturbance may be alleged generally (12) thus, "that the defendant wrongfully and injuriously

(f) Pindar v. Wadsworth, East's R. 154. See cases cited by Taunton, J., in Marzetti v. Williams, 1 B. & Ad. 426, and Blofeld v. Payne, 4 B. & Ad. 410.

(g) See Patrick v. Greenway, 1 Wms.

Saunders, p. 346, b. n. (2).

(h) Greenhow v. Ilsley, Willes, 619.

(i) Bowen v. Jenkin, 2 Nev. & P. 87;

6 A. & E. 911, S. C.

(j) F. N. B. 125, B.

(k) Hobson v. Todd, 4 T. R. 71.
(1) Atkinson v. Teasdale, 3 Wils. 278;

2 Bl. R. 817, S. C.

(12) It seems, from Smith v. Feverel, 2 Mod. 6, and from a dictum of the court in Hassard v. Cantrell, Lutw. 107, that in an action against the lord it is necessary to show a particular surcharge.

ate up and depastured the grass on the common with divers sheep and lambs, to wit, 200 sheep and 200 lambs." Neither is it necessary that the plaintiff should state that he was exercising his right of common at the time of the surcharge (m).

VI. Pleadings-Evidence.

To an action of trespass quare clausum fregit, the defendant may plead a right, of common of pasture, of common of turbary, and of common of estovers. Under the new rules (n), these are considered as distinct, and are to be allowed. But pleas of right of common at all times of the year, and of such right at particular times, or in a qualified manner, are not to be allowed.

By stat. 2 & 3 Will. IV. c. 71, entitled "An Act for Shortening the Time of Prescription in certain Cases," after reciting, that the expression "time immemorial, or time whereof the memory of man runneth not to the contrary," is now by the law of England, in many cases, considered to include and denote the whole period of time from the reign of King Richard the First, whereby the title to matters that have been long enjoyed, is sometimes defeated by showing the commencement of such enjoyment, which is, in many cases, productive of inconvenience and injustice: it is by sect. 1, enacted, "That no claim which may be lawfully made at the common law by custom, prescription, or grant, to any right of common or other profit or benefit, to be taken and enjoyed from or upon any land of the king, his heirs, or successors, or any land, being parcel of the Duchy of Lancaster, or of the Duchy of Cornwall, or of any ecclesiastical or lay person, or body corporate, except such matters as are herein specially provided for, and except tithes, rents, and services, shall, where such right, profit, or benefit, shall have been actually taken and enjoyed by any person claiming right thereto, without interruption, for the full period of thirty years, be defeated or destroyed by showing only that such right, profit, or benefit, was first taken or enjoyed at any time prior to such period of thirty years, but such claim may be defeated in any other way by which the same is now liable to be defeated: and when such right, profit, or benefit, shall have been so taken and enjoyed as aforesaid, for the full period of sixty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement, expressly made or given for that purpose by deed or writing."

(m) Wells v. Watling, 2 Bl. R. 1233.

(n) R. G. H. T. 4 Will. IV.

By section 4, each of the respective periods of years hereinbefore mentioned, shall be deemed to be the period next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question; and no act or other matter shall be deemed to be an interruption, within the meaning of the statute, unless the same shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had notice thereof, and of the party making or authorizing the same to be made.

By the seventh section, the time during which any disability exists, e. g. infancy, non compos, coverture, or tenancy for life, or during which any action shall have been pending, and diligently prosecuted, until abated by the death of any party, shall be excluded in the computation of the periods, except only where the claim is declared to be absolute.

Under this statute, a plea of enjoyment of right of common for thirty years before the commencement of the suit is sufficient (0), without saying for thirty years next before. Taking the 4th (p) and 5th sections together, it is clear that an averment of enjoyment for thirty years next before the times when, &c., is not in conformity with the act. The period mentioned in the act is thirty years next before some suit or action in which the claim shall be brought into question. Generally speaking, that would be next before the commencement of the suit in which the pleading takes place and according to the express words of the statute, and the decision in Wright v. Williams (q), the only correct averment is, "next before the commencement of this (or possibly some other) suit" (r).

Before the passing of this act, a prescriptive claim was a claim of immemorial right; the evidence of it was such as a party might be able to give in such a case; and the jury were to draw their inference from such proof as could be produced. Now, the burden of establishing an immemorial right is withdrawn, and the proof is limited to a thirty years enjoyment, but that enjoyment must be proved to the full extent; therefore proof of a thirty years enjoyment of common of pasture is not complete, if proof be given of an enjoyment for twenty-eight years immediately preceding an action in which the right is disputed, and it appear that twenty-eight years back the enjoyment was interrupted, but that the right was exercised before the interruption: and the party disputing the right is not bound to show that such interruption was adverse; it lies upon the party prescribing, under the statute, to prove thirty years uninterrupted enjoyment (s).

(0) Jones v. Price, 3 Bingh. N. C. 52, 3 Sc. 376.

(p) See supra, and see s. 5, post, p. 428. (g) 1 M. & W. 77.

(r) Per Lord Denman, C. J., delivering judgment of court in Richards v. Fry, 7 A. & E. 698.

(s) Bailey v. Appleyard, 8 A. & E. 161.