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AUTHORITIES ON THE LAW OF PROPERTY.
RIGHTS IN ANOTHER'S LAND.
COMMON PLEAS. 1534.
(Reported Year-Book 26 Hen. VIII. 4 pl. 15.] Note that Hales, Apprentice, said : “ Common appendant is of common right, and so it begins at first, and it shall not be appendant excent to arable land ; for a man shall not have common appendant to a house, nor to any other land but arable land, and this common a man shall not have except by prescription. For a man cannot make common appendant, for it begins only before time beyond memory, and in it a man shall have sufficient common for his beasts which manure his land to which it is appendant.” To which Fitz-HERBERT [J.] agreed, and said: “And it is otherwise with common appurtenanti for a man can make common appurtenant at this day, and can alienate it, and sever it from the land to which it is apnurtenant. but so he cannot with common appendant." And note that it was agreed in the same case that if a manor descends to two parceners or more, and they make partition, so that each of them has part of the demesne and part of the services, each of them has a manor. Quod nota.
Co. Lit. 122 a. There be four kinds of common of pasture; viz., common appendant, which is of common right (and therefore a man need not prescribe for it), for beasts commonable, that is, that serve
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for the maintenance of the plough, as horses and oxen to plough the land, and for kine and sheep to compester the land, and is appendant to arable land.
The second is common appurtenant, that is, for beasts not commonable ; as swine, goats, and the like. If a man purchase part of the land wherein common appendant is to be had, the common shall be apportioned, because it is of common right but not so of a common appurtenant, or of any other common of what nature soever. But both common appendant and appurtenant shall be apportioned by alienation of part of the land to which common is appendant or appurtenant ; and for common appurtenant one must prescribe.
The third is common per cause de vicinage, which differeth from both the other commons, for that no man can put his beasts therein, but they must escape thither of themselves by reason of vicinity ; in which case one may enclose against the other, though it hath been so used time out of mind, for that it is but an excuse for trespass."
The last is common in gross, which is so called, for that it appertaineth to no land, and must be by writing or prescription. Of common appendant, appurtenant, and in gross, some be certain, that is, for a certain number of beasts; some certain by consequent, viz., for such as be levant and couchant upon the land ; and some be more uncertain, as commons sauns nomber in gross, and yet the tenant of the land must common or feed there also.?
There be also divers other commons, as of estovers, of turbary, of pischary, of digging for coals, minerals, and the like. If common appendant be claimed to a manor, vet in rei veritate it is appendant to the demesnes, and not to the services; and therefore if a tenancy escheat, the lord shall not increase his common by reason of that. If a man claim by prescription any manner of common in another man's land, and that the owner of the land shall be excluded to have pasture, estovers, or the like, this is a prescription or custom against the law, to exclude the owner of the soil; for it is against the nature of this word common, and it was implied in the first grant, that the owner of the soil should take his reasonable profit there, as it hath been adjudged. But a man may prescribe or allege a custom to have and enjoy solam vesturam terre from such a day till such a day, and hereby the owner of the soil shall be excluded to pasture or feed there; and so he may prescribe to have separalen pasturan, and exclude the owner of the soil from feeding there." Nota diversitatem. So a man may prescribe to have separalem pischariam in such a water, and the owner of the soil shall not fish there; but if he claim to have communiam pischarice or liberam pischariam, the owner of the soil shall fisb there. And all this bath been resolved.
1 On common per cause de vicinage, see several cases in 10 Q. B. 581-640.
2 “ Amongst the older authorities there appears, certainly, some difference of opinion as to the meaning of the expression levant and conchant.' There is one set of cases in which it is laid down, that the term 'cattle levant and couchant upon enclosed land' means such cattle as are actually used for the purpose of manuring and cultivating the enclosed land. The rule now is, that such cattle only are to be holden levant and couchant upon the enclosed and as that land will keen during the winter It has been argued, that the rule includes such as the land will keep during the whole, or any part, of the year; but that is not so. The real question is. Has this defendant
Co. Lit. 164 b. The Lord Mountjoy, seised of the manor of Canford in fee, did by deed endented and inrolled bargain and sell the same to Browne in fee, in which indenture this clause was contained. Provided always, and the said Browne did covenant and grant to and with the said Lord Mountjoy, his heirs and assigns, that the Lord Mountioy, his heirs and assigns, might dig for ore in the lands (which were great wastes) parcel of the said manor, and to dig turf also for the making of allome. And in this case three points were resolved by all the judges. First, that this did amount to a grant of an interest and inheritance to the Lord Mountjoy, to dig, &c. Secondly, that notwithstanding this grant, Browne, his heirs and assigns might dig also, and like to the case of common sauns nomber. Thirdly, that the Lord Mountjoy might assign his whole interest to one, two, or more ; but then, if there be two or more, they could make no division of it, but work together with one stock ; neither could the Lord Mountjoy, &c., assign his interest in any part of the waste to one or more for that might work a prejudice and a surcharge to the tenant of the land ; and therefore if such an uncertain inheritance descendeth to two coparceners, it cannot be divided between them.
[Reported Dyer, 285, pl. 40.] The king's grantee or patentee of the herbage of a forest shall have trespass against any one who consumes or destroys the grass. but not the trees nor the fruit of them; and also shall take beasts damage-feasants there ; and the writ of trespass shall be quare clausum fregit, as well as if it had been of land. And by the opinion of three judges in B. R. in Trin. Term, 2 H. 8 [Keilw. 159 b], the patentee may inclose the forest by such grant, &c.3 turned more cattle upon the common than the winter eatage of his ancient tenement, together with the hay and other produce obtained from it during the summer, is capable of maintaining ?” Per PARKE, B., in Whitelock v. Hutchinson, 2 Moo. & R. 205 (1839). And see Carr v. Lambert, L. R. 1 Ex. 168.
1 In Welcome v. Upton, 6 M. & W. 536 (1840), a right in gross by prescription in A. and his ancestors to a sole and several pasturage, was held good and assignable.
? Funk v. Haldeman, 53 Pa. 229, 244 ; Van Rensselaer v. Radcliff, 10 Wend. 639.
3. “And these cases were put on this ground, that a man shall have an action of trespass vi et armis quare in warennam suam intravit, notwithstanding that the freehold of the soil is in the defendant, for he does not bring an action of freehold of soil, but for
[Reported 4 Co. 366.] In trespass between Phesant. plaintiff, and Salmon, defendant, the case was such: Tho. Tyrringham was seised of an house, 44 acres of land, 7 acres of meadow, and 2 acres of pasture, in Titchmersh in the county of Northampton ; to which house, land, meadow and pasture, he and all those whose estate he had, had used to have common of pasture for oxen, cows, and heifers levant and couchant upon the house, land, meadow, and pasture, as well in 30 acres of land in the same town (whereof one John Pickering was then seised in fee), as in 40 acres of land and pasture in Titchmersh aforesaid (whereof one Boniface Pickering was then seised in fee) as to the said house, land, meadow, and pasture appertaining. And afterwards the said Boniface Pickering being seised as aforesaid, of the said 40 acres, purchased to him and his heirs the said house, 44 acres of land, 7 acres of meadow, and 2 acres of pasture, to which, &c., and being so seised as well of the said 40 acres in which, as of the said tenements to which, &c., demised the house, land, meadow, and pasture to which, &c., to Phesant, who put in two cows into the said 30 acres to use the said common, and the said Salmon, who was farmer of the said John Pickering, with a little dog, leviter et moliter drove out the said cows, and the said Phesant brought his action of trespass for chasing his cattle. In this case divers points were resolved by WRAY, C. J., SIR THOMAS GAWDY, et totam curiam : First, . . . 2. It was resolved that common appendant may be apportioned for two reasons : 1. Because it is of common right, and therefore if the commoner purchases parcel of the land in which, &c., yet the common shall be apportioned ; as if the lord purchases parcel of
the warren, with which the defendant has nothing to do. So if one grants the vesture of his land for a term of years, if the grantor, who has the freehold in the land, takes the vesture or the profit which was his (the grantee's] by reason of the grant, he shall have an action ; for he does not bring the action of the land, but of the chattel. And the law is the same of a grant made of trees, and the grantee cuts them down, and the grantor takes them, a good action of trespass quare vi et armis lies for taking the trees, because they are his Chattes. And so where one has a herty or prom a freehold, and he who has the freehold does an injury to this liberty or profit that he has in his land, it is right that he should be punished vi et armis ; for he has nothing to do with them, but with his land and freehold, of which the other does not bring his action. And so as the lessee has a term, which is not now part of the defendant's freehold, it is right that he (the lessor) should be punished for entering the close, because he has given the close to another for the time, and the lessee will not use the action for the freehold. And all the cases put were held for law.” Anon., 5 Hen. VII. 10 (1490).
See Wilson v. Mackreth, 3 Burr. 1824 : Cox y. Glue, 5 C. B. 533.
1 The first resolution, in which it was held that the common was appurtenant, not appendant, is omitted.
the tenancy, the rent shall be apportioned ; so if A. has common appendant to 20 acres of land, and enfeoffs B. of part of the said 20 acres to which, &c., this common shall be apportioned, and B. shall have common pro rata. And where it was objected : 1. that the prescription faus in both the cases ; for in the first case he never had common in part of the land only, but entirely in all; and it would be now a prejudice to the terre-tenant if he should have common in the 30 acres only for all the cattle levant and couchant upon all the tenements to which, &c. And in the latter case, no common was ever appendant to part of the land, but entirely to the whole; also, 2. In assise of common all the terre-tenants ought to be named, and that cannot be when the cominoner himself has purchased part of the land. As to these objections, it was answered and resolved, that as to the 1st, the prescrip. ought to be special, sc., to prescribe to have common in the whole till such a day, and then to show the purchase of part, and from that time that he has put in his cattle into the residue pro rata portione ; as in the cases, when a corporation has liberties by prescription, and within time of memory the corporation is altered, there ought to be a special prescription; as to the second case, sc., when part of the land to which, &c., is aliened, there, every of them may prescribe to have common for cattle levant and couchant upon his land, and in none of these cases any prejudice accrues to the tenant of the land in which the common is to be bad, for he shall not be charged with more upon the matter than he was before the severance; and God forbid the law should not be so, when part of the land to which, &c., is aliened ; for otherwise many commons in England (which God forbid) would be annihilated and lost; and it was agreed, that such common, which is admeasurable, shall remain after the severance of part of the land to which, &c. But in the case at bar. forasmuch as the court resolved, that the common was appurtenant and not appendant, and so against common right, it was adjudged, that by the said purcbase all the common was extinct; for in such case, common appurtenant cannot be extinct in part, and be in esse for part by the act of the parties. And as to the last objection, it was answered and resolved, that if upon the matter the common appendant should be apportioned, then the terre-tenant should be only named out of the land charged with the residue of the common, as in case where al rent-charge is apportioned in case of descent, the tenant of the land shall be only named out of which the residue of the rent which remains issues. And it was said, in this case, this word (pertinens) is Latin as well for appurtenant as for appendant, and therefore subjecta materia, and the circumstance of the case ought to direct the court to judge the common to be appendant, or appurtenant.